(Facts) Police arrive at a house where they believe a participant in a breaking and entry lives. They find the front door open but no lights on inside the house or outside. Because the person they were looking for had supposedly taken part in a B&E and lives in this house they believe someone had broken into the house. They knock, announce themselves and enter. While making a protective sweep of the house, all the while proclaiming their presence in loud voices, they find two people asleep. Obviously, both are wearing earplugs because they aren't awakened by all the yelling going on. However, two minutes after finding the sleepers, when an officer shines a flashlight on the lady of the house she wakes up and shortly thereafter gives the two officers who have rousted her permission to search her house. The search turns up probative evidence.
(Finding) The court finds this entry valid under the community caretaker exception.
The Scope: "[T]he community caretaker exception may only apply to those circumstances totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." It must be "factually unrelated to an intent to search for evidence of illegal activity." In fact, the collapse of the "emergency exception" into the community caretaker exception "has erred on the side of the sanctity of individuals' Fourth Amendment privacy rights, by requiring, in every case, that police officers conducting warrantless searches pursuant to these exceptions do so independently of their criminal investigatory functions."
The community caretaker exception allows police entry into homes without a warrant.
The Test: Under the totality of the circumstances, was it reasonable for the officer to believe his actions were necessary for 1) The protection of the owner's property while it remains in police custody, 2) The protection of police against claims or disputes concerning lost or stolen property, or 3) Protection of the public and police from physical danger.
[comment] Oh, come on . . . Does any of that make sense to anyone who's not trying to cover for a bad search? There's not even any evidence given that the door was pried open or that a window was broken.
Case law in Virginia pretty clearly lays out that an open door is not an invitation for an officer to enter and that everything from the crossing of the threshold on is fruit of the poisonous tree. There are no exigent circumstances because there is no indication that the suspect is actually in the house. How then do you justify what the officers did? You trot out the community caretaker excuse. The problem is that this excuse doesn't even work under the standards laid out in this decision.
The search was not "totally divorced" from an investigation. Even assuming that the story woven is accurate and the occupants were deaf while they slept, the entire purpose of being at that address is investigation. They are there to find a suspect and immediately upon rousting the occupants they secure permission to search more thoroughly. These are not officers who drove down a street and saw a door suspiciously open; they were there to get their suspect.
Look, the community caretaker exception has its very, very, very limited real world applications. It's for the time when an officer stops to help a lady with a flat tire and sees 10 kilo of marijuana under the spare tire when he pulls it out for her. It's for the officer driving down the street who sees a store window broken and walking around the building finds a stolen car in the back. It may even be for the guy walking the beat who sees the Peterson's door wide open, realizes this is unusual, hears no answer when he yells in the door, and finds 16 year old Peterson Jr. passed out in the living room with a 6 pack in front of him and a beer in hand. The key to a real community caretaker exception is that the evidence is stumbled upon. And it makes sense in that context; it would be asinine to expect police to walk away from evidence just because they stumbled over it without the intent of finding it.
The problem is that it is also one of the most abused excuses seen in courts. Rarely have I seen it in one of the types of cases above. Rather, it is a fallback excuse used in cases like this wherein the search is obviously bad, the evidence must be excluded, and there's got to be some reason to get around that pesky 4th Amendment. There is no doubt that the approach to the house was purposeful. They meant to get their suspect and/or any incriminating evidence they could find. This was all part of a criminal investigation and the only way that can be ignored in considering the "totality of the circumstances" is to shear away the reason the police were there to begin with and the activities the police undertook the moment the search of the house for people was completed.
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Cutright v. Commonwealth - Subject: Whether the unavailability of more than one lab to do an independent blood analysis requires the dismissal of a DUI or the exclusion of the certificate of analysis.
(Facts) Defendant gets arrested for a DUI. When the blood test is preformed he opts for a second analysis by a non-government lab. There is only one non-governmental lab which has qualified.
(Arguments) The Defense claims that the use of plural language (laboratories) and language such as "laboratory of the accused's choice" necessarily lead to the conclusion that he should have had at least two private labs to choose from and therefore the conviction should be dismissed or, in the alternative, the lab report should be suppressed. The prosecution goes outside of the criminal statutes to find a statute which states that allows the use of singular and plural forms interchangeably.
(Finding) Dismissal - The court blows past all of that and determines that the evidence was sufficient to convict even without a lab report. It will not allow a Defendant who otherwise admits guilt to profit by dismissal.
Suppression - The court does not decide whether either of the equally abstract arguments made by the two sides is correct. Instead, it rules that any failure to follow the law would have been a mere procedural error and not violative of any constitutional guarantees. Virginia will not suppress for anything less than a federal constitutional violation or a statutory requirement to suppress. Therefore, the violation is only considered as it effects the weight of the evidence and the proper remedy is to allow both sides to attempt to prove or disprove any prejudice coming from the procedural error.
Picture a large man on a huge black and chrome cruiser, dressed in jeans, a t-shirt, and leather gloves puttering maybe 25mph down a quiet residential street…and in the fight of his life with a squirrel. And losing.
(Okay, I know it has nothing to do with criminal law but I just couldn't resist)
Moses v. Commonwealth - Subject: Is rubbing one's genitalia underneath pants in the view of another enough to qualify as "making an obscene display or exposure of his person?"
In this case both the majority opinion and the dissent are well written and well reasoned. The majority looks to pre-statutory common law, and reverses the convictions, concluding:
Our review of the common law of indecent exposure and the language of the statute itself compels the conclusion that the words "display" and "exposure" as used in [this statute] are synonymous and that the statute applies only when the body part in question was clearly visible without clothing or was exposed without clothing and likely to be seen."
The dissent comes back with a common law argument of its own with a definition of lewdness that would include the activity in question. As well, the dissent strikes back with a stronger argument that the words of a statute should be interpreted as to not render a portion superfluous. Therefore, display and exposure should have different meanings. The dissent then goes on to point out that "display" as construed under the use of a firearm in a felony statutes does not require the gun to have been seen. This is offered as the definition of display which should be followed and allow the convictions to stand.
[comment] IMHO, while both are interesting reads, the majority has the better of the argument. As to the common law, its argument seemed to find more of its substance in Virginia case law against which the dissent railed and offered argument which stretched further to make its points. However, the dissent's second point is thought provoking. Nevertheless, assuming this argument is correct - that the two words are in subjunctive and should have different meanings - the meaning of "display" isn't required to come out the way the dissent wants it. The statute seems pretty clearly to be an anti-nudity statute and the way I would read it "exposure" would be the lady nude sunbathing in her backyard where the neighborhood kids could see (or not) while "display" would be the same lady sunbathing nude but turning her chair so that the guy next door has no choice but to see her when he pulls his car into his garage. Of course, there are undoubtedly a plethora of possible definitions - this is just the one which seems most likely to me from a plain reading of the statute. In the end I don't think the dissent got close enough to even require the invocation of the rule of lenity; still it was a good argument.
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Widdifield v. Commonwealth (en banc)- Subject: Can a judge sentence a Defendant to two years, suspending all of it on condition that the Defendant serve 12 months in jail and later sentence the Defendant to serve two years upon a show cause?
The Court decides that what follows did not preserve the appeal:
Court - The court revokes the two years that were suspended. . . . Attorney: Does she receive credit for the 12 months she pulled as well?
Court - No, because I gave her a two year sentence suspended on the condition that she serve 12 months and she served that and there's still two years left. . . . Attorney: I understand.
Court - You can check it.
Attorney: I'm not sure that's how it works, but . . .
Court - All right, go ahead.
Attorney: Thank you.
[comment] Unfortunately for the Defendant, I think the decision tracks with the controlling standard in Virginia's law. Judge Benton keeps trying to get the Court to maybe consider that the "ends of justice" exception could be invoked merely because an unjust thing might have happened in a trial but the court, as a whole, won't go there
As to this sort of procedure in a trial court - I think that technically it's wrong. It's hard to justify someone serving three years of a two year sentence. Still, I understand when this is usually done. At least in the courts wherein I practice this usually occurs when the judge is trying to give the Defendant a break. The guidelines come in for 2-3 years and the judge, either through his own sense of proportion or through something offered by the Defense, feels that it's overpunitive. So, the judge suspends an amount of jail time and requires the Defendant to spend a year in jail with the objective of keeping him from a penitentiary and allowing him potential access to programs like work release which the jail might offer. It's meant to be something which benefits the Defendant so it's hard to get upset at the judge even though it is wrong.
I simply don’t get to chase people any more. By the time a call comes in and is routed to the nearest unit, the offender is long gone and I turn up with my briefcase and take a statement. We usually know who we’re looking for, in cases of domestic violence or when the victim and offender know each other, so there isn’t really the incentive to go charging through broken windows and over fences, with the attendant risk of injury.
Having said that I still get the chance to go running after someone and the other night I did just that. Never found him of course, only really caught a glimpse at the end of the garden. But it was good fun calling out to him to give himself up and shining the dragon light in peoples back gardens and jumping over fences. If you get the chance to chase anyone it’s funny how any common sense leaves you and the only thing left is the “hunting” instinct. Makes me realised why I joined all those years ago. Nowadays though I have to carry so much equipment the villain gets an even better headstart.
having missed him I'll have to change tactics: I think I’ll just pester his girlfriend into giving him up. I’ll knock on the front door loudly at 8:00 am every morning when I’m on dayshift and 9:45 pm when I’m on nights. You may be wondering why I don’t just go round at 5:30 am or 11:45 pm and really inconvenience them.
You won’t be surprised to know that it’s against force policy to do this. Routine arrests can only be arranged between 8:00am and 10:00pm. You probably won’t be surprised when I tell you that my force has determined that arresting people outside these times contravenes their human rights (Article 8 Right to a Private Life)
Despite the obstacles to me arresting him, most of them imposed by senior police officers, I’ll give him a week to give himself up then call his employer and tell him I want to speak to him during working hours – he either talks to me next week or loses his job. I don’t suppose I’m allowed to do this either (Article 11 Freedom of Assembly and Association), probably.
It doesn't happen too often, thank goodness, but every so often officers end up arresting other officers or police department employees. I spent 9 months in 1990 on an investigation involving one of our narcotics investigators. He was using someone as a confidential informant who was on probation. A really big no no in Iowa. The guy was making narcotics purchases for the investigator, then the investigator would put in his paperwork that someone else made the purchase. In short, he committed perjury by not correctly identifying the informant. Myself and two other detectives arrested him at the end of the investigation. It was an unpleasant 9 months and at the end I was consuming large amounts of Maalox. Last week it was noticed that some money was missing from the department. People who have their vehicles impounded pay a $20 fee to the police department to get their cars back. This money is collected at the front desk, which is where civilian employees work. In short order the culprit was identified and he was arrested. I just can't fathom the stupidity of the young man who did it. He was in our Police Cadet program, just 20 years old, preparing to become a police officer. The city was paying him $29,000 a year in that position. If he'd been hired as an officer next year he would have started at $41,000 a year. So he's pocketing money at $20 a pop. What an idiot! It was determined that he took approximately $3,200. I hope it was worth it!
[comment] We're still having difficulties with this one in Virginia. Everybody still uses the monster size legal paper files and there are still many who use legal paper itself. I think the problem may be that Jefferson never approved the switch to 8 1/2 X 11 (everything in Virginia must have had Mr. Jefferson's tacit approval). Still, Mr. Jefferson never expressly decried such a switch either so I think things are slowly getting there. Next up: Computers a C-64 for everyone!
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Public Defender Dude discusses the rape shield laws and a potential closing argument in a rape case. It's a thought provoking line of argument although I suspect the courts would not allow it because it implies the very thing which a court has excluded. If the prosecutor is on the ball he should object because it basically says, "I've been forbidden to tell you about it, but there's something relevant out there, in her past, which you should consider." Still, it's an interesting argument created in reaction to a type of statute which often violates the constitutional right to confront. Maybe with a little more subtlety:
Now, it's clear that the way someone dresses to come to court is not always the same as they dress outside of court, the prosecutor told you this when he told you Mr. Smith is cleaned up today, but in the real world he was a predator. However, let's not be mistaken - the prosecutor didn't have his witness come to court wearing short-shorts and a skin-tight tube top either. He had her come to court wearing a nice, conservative dress. He called Mr. Smith a predator but I can't call Miss Jones anything like that. There's no evidence to that effect and I am forbidden, by law, to ask those sorts of questions.
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Meanwhile back on the ranch . . . Infinity Ranch comments on my answer to "How can you represent criminals."
A new blawg: Law Notes. (Don't worry about it, more than one blawg has borrowed the "Week in a Life" format) Mark has been e-mailing me, helping me with graphic problems, and commenting on this site since sometime in his 1L year. I look forward to seeing how his blog develops.
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Finally, I find this non-legal site via Stop the Bleating. And let me be perfectly clear, if you are among the "Hot Women of the LORD" and want to make sure I am on the right path . . .
I've been practicing for a short time and it's the week prior to Christmas. Client has a show cause but has not bothered to come by and see me. Mom basically bullies Defendant into not continuing the case. The show cause goes badly (judge yells at me for not being prepared). Client goes to jail and when I get out in the hall Mom is all upset and yelling at me for ruining her Christmas.
Middle class family's little darling has been caught partying in a State park after hours. No marijuana was found on her person but co-defendant had it (the park ranger acted just a little too quickly). The park, like all the parks in this county, has signs all over the place prohibiting after hours occupation. It's a slam dunk for the prosecution who won't do anything to make it go away because of of problems they've been having out at the park. Guilty plea, $50 fine, case over, Client satisfied. Parents catch me out in the hall and tell me that this is going to ruin there little girl's chance of getting into college. They start asking me ridiculous questions about how close the sign had to be to the dirt road (Client drove past at least one very readable sign when she drove through a parking lot on the way to the dirt road). Then they start in on me as to why I didn't hire a private investigator for the case. Somewhere shortly after that I inform them that Client has ten days to appeal if she wants to and walk away.
Client's case was the last on the docket and his result was bad (can't remember the facts of it anymore). I stay in the courtroom after the judge leaves the courtroom to do some paperwork and talk to the clerk and deputies. Mom suddenly bursts in the back door and charges to the front yelling about what a terrible lawyer I am etc. By the time she gets to the front there are three deputies between her and me (remember folks, always be nice to the deputies). They escort her out and lock the courtroom so that she cannot come back in.
Client is caught stealing $200+ from a store (shoplifting electronics) and confesses. In the end, the prosecution will not reduce. On the day he is sentenced I am already feeling pretty crumby because I've just seen an 18 year old kid with no real record get marked for life. Mom is more than happy to pile on after I come out of the courtroom: "I want to thank you. He was my last child without a record and our hopes were all with him. Now you've ruined our family's last chance."
[caveat] Most families don't act like this. I get a lot of people who've seen so many family members go to jail that they just shrug it off. I get some criers. I get some who just shut down. However, nothing sticks in your memory more than those who yell at you.
It's about a local government refusing to allow citizens to watch their elected officials in action because they are discussing potential crime and efforts to deter it.
"There are areas of the law where some type of gang activity are terrorism because you are terrorizing the public," Stripling said.
Does anyone out there actually believe the purpose of this statute was to allow government officials to exclude the citizenry while discussing ordinary - or in this case hypothetical - criminal matters?
[addendum] Here are the statutes in question:
§ 2.2-3711. Closed meetings authorized for certain limited purposes.
A. Public bodies may hold closed meetings only for the following purposes:
20. Discussion of plans to protect public safety as it relates to terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such activity or a related threat to public safety.
§ 57-48. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Terrorists and terrorist organizations" means any person, organization, group or conspiracy who assists or has assisted terrorist organizations, as provided in 18 U.S.C. § 2339 B or who commits or attempts to commit acts of terrorism, as defined in § 18.2-46.4.
§ 18.2-46.4. Definitions.
As used in this article unless the context requires otherwise or it is otherwise provided:
"Act of terrorism" means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation.
§ 19.2-297.1. . . . For the purposes of this section, "act of violence" means (i) any one of the following violations of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2:
a. First and second degree murder and voluntary manslaughter;
b. Mob-related felonies;
c. Any kidnapping or abduction felony;
d. Any malicious felonious assault or malicious bodily wounding;
e. Robbery and carjacking;
f. Criminal sexual assault punishable as a felony; or
g. Arson when the structure burned was occupied or a Class 3 felony violation of § 18.2-79.
(ii) conspiracy to commit any of the violations enumerated in clause (i) of this section; and (iii) violations as a principal in the second degree or accessory before the fact of the provisions enumerated in clause (i) of this section.
So, the booming metropolis of Staunton, Virginia thinks a gang may move into town and start committing murders, robberies, malicious assaults, etc. with the intent of intimidating the civilian population at large. If you really stretch what a gang does you can get there. A criminal gang may very well act to keep people from testifying or cooperating with the police. Of course, it doesn't have the terrorist intent of a proactive attack against a governmental, religious, or social structure with the ultimate goal of destruction or subjugation.
Personally, I don't think the associates should be drafted. The courts should start at the top. Start requiring the senior partners at BigLaw firms to give up a week at a time under threat of a mandatory ten day contempt charge if the senior partner doesn't appear (even if he sends an associate). Announce that this policy will be set in place in exactly thirty days from this date.
There's a story that passed around here a while back that there was a judge who set a significant bond and refused to appoint a defense attorney when the Defendant made bond but then couldn't afford an attorney. I was never able to determine whether it was apocryphal or not.
Reading through the information, I find it a little disturbing that these only assist prosecutors and think that this probably raises all sorts of issues (at least in intra-U.S. law). However, I've got to get to court so I'll let ya'll sort them out.
Arbitrary and Capricious posts even more about the absolute disaster which is Grant County, Washington. You know that the local attorneys know the situation is bad and are running for cover when you read things like this:
On Friday, White filed court papers pleading for help. "I am swimming upstream right now," he wrote, saying he has no training in defending juveniles or experience with DNA. Admitting he lacks the experience to make crucial decisions in this case, he asked that Michele Shaw, an experienced Seattle attorney, be allowed to assist him.
White's current co-counsel wants to call it quits. De Young filed a motion last week asking to withdraw from the case, saying the county wasn't paying him promptly, causing financial hardship. He also said the county had poisoned the pool of available experts by stalling payment for their work in prior cases.
Without more financial help, De Young said, he feared being found incompetent, and held liable.
Macondo Law reprints an article which pretty much accuses various US Attorneys of "astro-turfing." If so, it strikes me as a rather inept way of doing it. If you are going to fake a grass roots movement you could do better than send two letters to Tennessee papers and one to Guam (unless there are a number of others and the author just didn't think it relevant to at least give us an estimated number). More likely, I think that "the brief" on this issue came down from the mount and the various USA's took it upon themselves to address the issue. Not wanting to cause future problems they cleaved to the revealed word and it shows. Either way it is humorous.
"Do you believe in the 'adversary system'--that the most effective way to get at the truth is to have advocates for each side fight it out? Or would you prefer a system where the entire court is devoted to the truth first and foremost? . . . I've never been convinced that the adversary system is really the way to go. Maybe it's one of those things that in practice is better than the alternatives (worst form except for all the others). What do you think?
Yes, I favor the adversary system over inquisitional systems. I think that the theory of the inquisitional system is alluring the same way the theory of communism is alluring. It's a great theory but I do not trust the reality of it.
That's not to say that one of the systems is more corrupt than the other. All systems tend to fail if corruption reigns. Nor would most see a marked change if the system were inquisitional. In fact most Defendants walk into court, plead guilty and accept punishment. I suspect that plea agreements and pre-sentence reports function roughly the same way that an inquisition would.
However, if someone asserts that they "did not do this thing" I am of a mind that he needs to be in an adversary system. By the time a Defendant arrives in court he has already been judged guilty by the officer, found guilty by whatever lower level authority approves police action (a magistrate in Virginia), been judged guilty by the prosecutor, had whatever version of grand juries and/or preliminary hearings find him guilty, and when he walks into court faces a palpable atmosphere of presumed guilt.1 This all reinforces what is perhaps the greatest danger in any system::
It is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.2
In an adversarial system there is a person whose role is to keep reminding the judge that the person before him is not just another of the great unwashed masses to be dealt with just as the last 50 were: the Defense attorney. His job is to make the judge realize that the facts (or lack thereof) in this case distinguish this particular person from all the others who have come before and been found guilty. It's his job to keep the system from sinking to the point that all that is seen is "the usual man in the usual place."
Do I think this system perfect? No, just preferable. Defense attorneys can fall into the same "workshop" mentality. The check on that would be a jury. But that's a post for another day.
----------- ---------- ---------- 1 At an intellectual level we all realize that everything previous has only been to a "probable cause" standard but the "he's gotten this far, he must have done something" sentiment is strong and it is reinforced in court day after day as guilty people travel through the system.
I am not happy with the post which immediately follows this. It's about the reason that I feel a Defense attorney is just in defending people whom he realizes are probably guilty. It is incomplete and requires so much more thought and research.
I have been trying to put this post together for a long time and I've never been satisfied with the result. I've walked away from it several times. The reasoning found in it is religious in nature and my instinct tells me that this needs to be developed quite a bit more. I suspect that a complete defense of the position would require several months of research and a seriously long paper.
After I wrote the post I came within an instant of once again erasing it and once again shelving the idea but I told Blonde Justice that I'd attempt to get something up this weekend about my reasoning for this kind of work.
Anyone who represents Defendants in criminal matters has been asked the question over and over again: How can you defend those people? The moral assumption underlying that question is inescapable: to try to keep someone who is probably guilty from being punished is wrong/evil. I concede that this is a valid assumption. Having made that concession, how then do I justify defending people when I know that by far the larger number among them are probably guilty?
Well, in a great many cases I just look the person in the eye and say, "It pays the bills" or some variant thereof. I have learned from experience that most really don't want to hear an answer, particularly if it involves some thought or might challenge their world view. And it is amazing how many people will happily accept this reason despite the fact that it is, at best, an amoral position.
If someone seems to be expressing a real interest I go to the fairly basic answer which is reflected in statement which was previously at the top of this page:
If I choose to defend only the Righteous, When the Rigtheous are accused, What tools shall I have to defend them?
The statement has something of a double meaning. One interpretation is that if I don't practice except in the rare ocassions when there is someone I am certain is innocent, I shan't develop the skills to be able to defend that clearly innocent person when such skills are desperately needed. The second is that I must fight on in an attempt to preserve those rights and protections which exist for all citizens. Should these rights and protections slip away in the process of making sure "the guilty" go to prison when the truly innocent are brought to trial there will be nothing left to keep them from just being pushed through the system toward an unjust conviction. Thus, the evil of not performing the duty of defense is greater in the long run than the evil of defending those who probably committed the crime.
Still, personally I find this answer unsatisfying - particularly in the major criminal events: the Sniper attacks in DC, the Oklahoma City bombing, the killing of a pregnant mother, etc. The actual reason which I find in my heart is more complex and involves religious value judgements. What follows is an attempt to explain the reason I believe criminal defense attorneys morally correct in their defense of those accused, no matter who the accused is or his actual level of guilt.
I proceed from these base principals:
(1) To harm another person is a sin.
(2) It is impossible to live life without harming other persons.
(3) It is our duty to sin as little as possible.
(4) As members of a democratic republic we are responsible for every act of our government.
The cornerstone of this is that harming another, no matter whom you harm or how slight the harm is sinful. You could make the same argument that I make below by making some sort of "moral imperative" rationale but that just doesn't work for me. Personally, absent the argument of moral requirement, I do not find persuasive non-theistic arguments for moral behavior. Frankly, without a requiring agent nothing is actually necessitated beyond that which leads to an ordered society. An ordered society does not necessarily worry that a certain percentage of its populace is harmed as long as society continues to function.
My faith informs me that we all live sinful lives. Even were we still in an innocent state as proclaimed by the story of Adam and Eve in Genesis the innocence would not come from the fact we committed no sins but in the fact that we would have had no intent to do so. Remember, the tree was not about good and evil it was about the knowledge of good and evil. Gen. 2:16-17 & Gen. 3). Whether you believe this to be the literal Truth or a co-opted Mediterranean creation story meant to show creation and fall at the hands of One True God (rather than a multitude) it is instructive as to the presence of sin.
The problem is that, given a little thought, one comes to realize that every act or act of omission causes some sort of harm to others. You work hard and get a raise and the person in the next office doesn't; you don't work hard and don't get the raise and provide less for your family than you are capable of doing. Now, I have purposefully chosen two fairly innocuous examples rather than a parade of horribles in order to emphasize that in most cases the harm, and therefore the sin, is minor and even goes unnoticed. Nevertheless, in every single choice of action either choice will render some harm to someone. This is a "but for" standard not a "proximity" standard.
Under this reasoning it follows that any act of the government which deprives someone of any basic right such as liberty is a sin. Often it is a necessary sin. Entering a suspect's house under the auspices of a warrant, gathering items from that house, and throwing the suspect in prison for the rest of her life because these items prove she is a serial killer are all necessary evils. They must be done in order to protect society at large despite the fact that they harm an individual. We are willing to sacrifice and do such evil acts because they are overweighed by the halting of greater evils.
We are responsible for the acts of our agents and those who serve in the government are the agents of everyone in the nation. Every harm which they perpetrate is imputed upon us all. The burden is to make sure that no greater harm is passed on then necessitated by the circumstances. Although not an exact fit, I think St. Thomas Aquinas' statement is instructive:
Human law is law Only by virtue of its accordance with right reason, and By this means it is clear that it flows from Eternal Law. In so far as it deviates from right reason It is called an unjust law; and in such a case, It is no law at all, but rather an assertion of violence.
Reason calls us to limit that amount of harm which our agents do in order to keep the attribution of that extra harm from ourselves. At any time the government steps beyond the necessary harm required by reason it is committing a violent act for which we are responsible. It is no answer that the sovereign is the actor for we are the sovereign as long as we have the franchise.
The role of Defender is to make sure that our government in its laws and punishments does not rise to the level of an assertion of violence because it has strayed beyond reason. It is, perforce, an imperfect solution. The Defender is an advocate for only a single individual at a time and must fight within the boundaries as they are laid in existing statutes and case law. Thus, for instance, he is not in a good position to do anything about the fact that under Virginia's laws licenses are suspended far too easily (usually punishing the lower working class for not being able to pay fines in time or get insurance while providing no alternative but to break the law in order to drive to work) or that the federal sentences are badly out of kilter (see my prior posts here & here). Still, it is a vital role. The Defender is the person who stands between society and the descent into vengeance.
Vengeance, as one might suspect, has no place in the system as I perceive it. Deterence and protection of society at large are valid goals which can balance appropriately the evil inherent in harming that particular member of society accused - if he is in fact found guilty.
On the other hand, vengeance is not a valid reason to harm another. It rises out of the base emotions of anger and, more deeply, out of fear. There is no such thing as a fair trial or an appropriate punishment when vengeance is involved. There is assumed guilt and a rush to overpunish. It is what has driven us in the past to acts such as lynchings or stonings. It is the greatest threat to a just, balanced system because it is never satisfied. Rules and rights will be bent or abolished because they get in the way of proving someone did what he is accused of having done. Punishments will be out of proportion because revenge is never satisfied at an appropriate level: it wants the sense of shock and fear caused by a disproportionate punishment because that gives the sense that the accused has then been as affronted as much as the victim is supposed to have been.
The Defender stands as the bulwark against such perversion. He does everything in his power to preserve the rights, rules and appropriate sentencing which guarantee the system will remain just, balanced and harm none further than is necessary. In fighting the thousands of individual battles he contributes daily, at the very least making the attempt to keep our laws and legal system from slipping into a mere assertion of violence. He fights against overharming individuals through unproven convictions and convictions made through the destruction of those rights and laws protecting everyone; he fights against the constant cry to overpunish. In so doing he keeps the stain of excess harm from society at large. He performs a most necessary service for us all.
I must admit to a lack of knowledge on the subject so I ended up doing a quick bit of research. The actual title of the convention is the "Hague Conference on Private International Law Convention on the Taking of Evidence Abroad in Civil or Commercial Matters" (find the actual convention here). A quick scan of the document would seem to indicate that it does not apply to criminal law. However, I did not sit down and read it indepth because I really didn't want to figure out statements like "The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 37" which make about as much sense as "During the third reconciliation of the last of the Meketrex Supplicants, it chose the form of a giant Sloar."
In the end, I must conclude that my reading is in error, lacks proper context, or that there are other sources for this power. At the very least the State Department, which I assume has far greater knowledge on this matter than I, believes that letters rogatory can be issued in criminal matters by American judicial authorities. However, the letter rogatory seems only to allow a deposition, without presence of US trial counsel and most likely without any cross examination:
This raises all sorts of constitutional issues about the right to counsel, the right to confront, the right to compel witnesses to appear in the courtroom (where a jury can judge their demeanor), etc. These three spring immediately to mind; I'm sure there are other problems with this process.
[addendum] According to the IRS, Egypt is not a signatory of the Hague Convention on Evidence (see first paragraph of sec. 5). So the judge must believe that his power to do this proceeds from another source. Anyway, since the trial is already in progress it would seem too late for a letter rogatory. The articles I've read all seem to indicate that the process is long and complicated and probably could not be completed by the end of the trial - much less the prosecution's case in chief. Although it would seem unlikely, maybe the witness has already voluntarily come to the U.S. Maybe the government plans to compel Rueters to give it the information somehow (though this would again seem to cause hearsay issues and a violation of the right to confront).
I just wonder if the government might have fought hard for an empty victory. Of course, I'll never know. No paper will cover this indepth enough for a satisfactory answer. If anyone out there understands all this feel free to drop me an e-mail straightening out any misconceptions I have and/or explaining the realities of the case.
I go to federal court this morning in order for my client to get sentenced. It's not as bad as most, he's facing 24-30 months for a small crack distribution. He didn't even have it on him - when the undercover police approached him he had to go down the street to get someone who actually had some. Then, after they indict him nobody bothers to go pick him up (eventually he is picked up when an officer decides to check his ID for just walking down the street) and in the ensuing two years he's gotten in no trouble.
Sometimes I wonder about the sense of perspective of those in the federal system. I looked at my client's record and compared to most I get it's a pretty minor record with only one felony event 20 years ago. Now that's not to say there's nothing on it - he has the typical little convictions you find on the records of those whom the presentence reports label "common laborers." Every couple years there's a driving with a suspended license charge or some other minor misdemeanor offense and sometimes he even spends a few days in jail. I regularly represent guys with 5 or 6 felonies and I've even had people with over 20 felonies on their record. My client's record isn't bad enough that it would get much, if any, attention in most State courts I practice in. Nevertheless, prior to the hearing the prosecutor is talking to me about how bad my client's record is. And then the judge mentions the same thing while sentencing my client. Huh?
Anyway, the judge sentenced my client to the low end of the guidelines and then stated that the sentence would be exactly the same if the guidelines are completely unconstitutional because the guidelines were an appropriate recommendation even if they weren't binding. While it really wouldn't apply in my client's case, I wonder what the entire 4th Circuit is going to do if the Supreme Court rules that only the upward adjustments are unconstitutional. It is going to be a mess.
But the annoying thing was that I screwed up a court procedure. It is a little frustrating to go into federal court because I don't get enough work there to be in the courthouse all that often. This doesn't really effect how anything turns out but it does lead to piddling little mistakes. I know sentencing hearings in the Commonwealth's courts inside and out. There are 5 stages and the attorneys actively partake in the first three, each in the same order: prosecution, Defense, prosecution rebuttal. The first stage is a discussion of the presentence report and any possible errors therein. The second stage is the presentation of any evidence. The third is argument over the sentence. 4th is Defendant statement. 5th is the actual sentencing by the judge.
So the hearing starts and the AUSA gets up and says "We have no objections to the report and we stand by our filings." I stand up and say I have no objections to the presentence report. Then I wait for the prosecutor to see if he wants to put in any evidence. The judge prompts me, asking if I have any evidence. So I have my client testify and sit again. The judge prompts for argument and I look over at the AUSA to see if he's going to argue anything and the judge prompts me, "He said he was going to stand by his filings." So I get up and argue. There were no real glaring errors or anything, it didn't effect the outcome, and I don't even think it registered with my client. I just hate being in court making stupid little mistakes while the judge looks at you quizzically.
When I leave the federal courthouse I burn rubber to get to the courthouse in the county I usually practice in. I figure I'm probably late and might actually be the last case left. However, the local courthouse has recently started scheduling all the drug task force's cases on Fridays so the court room is so packed that they have two prosecutors in there spelling each other and they are still running with a full courtroom when I get there. I have to wait a hour until my case is called. We do the preliminary hearing and the prosecutor's case for attempted robbery and use of a firearm in attempted robbery is weak but it survives the prelim. It will make for an interesting trial.
In the afternoon I go off to the jail to visit a client and find out something which really p.o.'d me but I cannot talk about it (at least not yet). By the time I finish I get back to my office after 5 p.m. I spend a couple hours doing paperwork and call it a day.
Criminal Appeal on Taking DNA Without Individualized Suspicion
Criminal Appeal goes over a decision wherein California holds that the government's interests outweigh a person's right to privacy if he is on probation even if there is absolutely no individualized suspicion. Therefore, DNA can be taken in order to develop evidence for cases which happened before and after the person was under the legal supervision of the courts and probation.
[comment] The problem here is that the government's interest will always outweigh the interest of the individual - in each and every situation. It's the reason balancing tests are so very dangerous to our rights.
. . . I'll get posts up about the latest pronouncements from both the Virginia Courts Appellate and the Fighting Fourth. Sorry this week hasn't had 'em so far. I actually took Monday and Tuesday partially off and Wednesday was an all day joyride around the beautiful rural areas of Virginia so that I could visit my federal clients. Today is catch up with work day. Hopefully, I'll find some time soon to sit down, read, and parse the newest opinions.
From what little experience I have driving in the DC area, I assume that it would not be a good idea to drive into the city. A friend suggested that I park the car and take the subway in (like I'd know where the subway starts or ends). I'm pretty clueless about this. If anyone has any suggestions I'd gladly take any advice.
Personally, I chose basic names. My labrador is named "Fred" after a famous graduate of my college (Centre) and my chow-golden retriever is named the "Spot" of Munsters fame. Both were vetted succesfully, although there was some problem with the Fred name. Consequently, I no longer name after people or things. When I named my cats "Buzz" and "Bit" they flew through the vettying process.
---------- ---------- ---------- 1 Not to mention how hard it is to get a marriageable woman past them. How was I to know that my former intended's great-grandmother talked to Elizabeth Cady Staunton once?
Actually, some of the lawyers can be forced to work, and are being forced to work.
A Hampden County (the Massachusetts boondocks) Superior Court Judge ordered bar advocates to take cases. The SJC (highest state court) upheld the order.
In Hampden County, attorneys registered for the bar advocacy program as of August 3 can be forced to take cases (at the $30 rate) under threat of bar sanction. Although I am not (and never will be) a participant in the bar advocacy program, I believe a condition of participation is agreeing to take cases assigned to you whether you want them or not.
Yes, they should be paid more. But they knew the rates when they signed up. A "strike" is unacceptable. I've addressed this at my own site:
The dispute between the "striking" Bar Advocates and the Governor is heating up. Like Reagan with PATCO, Romney is threatening to "fire" them all.* I'm pleased. Sure, they're not paid enough. But their work stoppage is threatening public safety because without enough lawyers, courts are letting criminals out of jail.
A few quick points:
1. Bar Advocates should be paid more than their (lowest in the nation) current rates.
2. Bar Advocacy is about more than just money, and it is unprincipled to turn it into a labor issue.
3. Because having no lawyer is a get-out-of-jail free card, for the first time in American history it is better to be a poor defendant than a rich one.
*Why all the quotation marks? Because they aren't striking, really. They're just refusing new cases. And the Governor can't fire them because they don't work for him. He is threatening to prohibit them from getting any new cases, ever.
I addressed the issue of actually getting paid for your work in this prior post. To elaborate further, IMHO if the pay is so low that you are losing money or taking a very substantial hit when you take any court appointments it discourages people from concentrating their practice in that area. Those who serve the indigent (outside of PD's) will then generally fall into two groups: (1) Those who take appointments as a political matter, and (2) young lawyers who don't have anything else on their platter yet. The first group can actually be well established, very capable attorneys but, make no mistake, one of the reasons they are in court is to show their faces to the judges and garner favor among those in power in the courthouse (you know, the clerks). I see this in numerous counties wherein I practice but I also notice a lack of it in some smaller counties and in larger cities. Even where I see it, I doubt there are sufficient numbers willing to take a large enough case load to handle all cases. The second group is dangerous. They come into the courthouse for a cycle or two - because their firm wants "to give back" or they want to get some courtroom experience or they just don't have enough business to crowd out the criminal work yet - and then they disappear. This is not to say they are dumb or not good lawyers; I just mean they don't have the experience gained over time. Usually, they don't understand the procedure (cuz it ain't the procedure we were taught in law school) and often they don't have a feel for the way things work informally around the courthouse. Usually, most are bright enough to ask more seasoned attorneys for assistance. Still, there are those days when a brand spanking new kid from an all civil firm stands up and tries to do it the way he thinks it should be done without any help - those days are painful.
Which is a long winded way of saying that a cadre of experienced indigent defense attorneys needs to exist. When the pay is so low that these people walk away and start to develop a practice in real estate (the CLE booklet's sitting on my desk right now) because they can't make a living doing indigent defense it does no good to turn on them. Forcing these lawyers to work or be permanently banned from defending the indigent makes no sense. You'll either do 5 hours of work at a loss or we won't let you take any more cases at a loss? The mandated response to that is "Okay, take me off the list." These guys have to pay their bills - you can't just tell them to suck it up because there are principles involved. They obviously already have been for years. How else could the Legislature have gotten away with letting the situation get so bad?
The part about lawyers endangering the citizenry because these criminal will be let out of jail is a canard.1 The Legislature endangered the citizenry by refusing to pay an adequate amount so that market forces would bring lawyers to the job. The Legislature took advantage of the fact that many were willing to work with substandard funding - probably in good part because their principles got in the way of naked capitalism. Nevertheless, capitalism gets everyone in the end. Every single accused who gets out on an unsecured bond because he has no attorney is on the streets because of the Legislature; every single accused who has his case dismissed (mind you, without prejudice) has had his case dropped because of the Legislature; and everything that happens as a result of these people remaining on the street lies at the feet of the Legislature.
Again I ask: If this is the crisis proclaimed, why doesn't the governor bring the Legislature back in session to address the issue of adequate funding instead of trying to overburden PD's and force private lawyers into a Hobsons choice of working at extremely low pay or going out to do work which can actually pay the bills?
---------- ---------- ---------- 1 Not perpetrated by Carpundit; it arises from the statements of law enforcement, prosecutors, the AG, and the governor as they act to label something they dislike and cast blame for the fact the system is failing because of Legislative neglect on the lawyers.
I arrive a hour early to federal court. It's a show cause so it's not like I can spend the entire time reviewing the file (again). I happen to have a book in the car which I am reading so I grab it; my plan is to sit across from the courtroom in one of the waiting rooms and read for a while. When I get to the front door the marshals confiscate the book but don't give an explanation. After court, on my way out they give me the book back so it must not have been a deadly weapon. All I can figure is that the book must be seditious and the marshals were doing their level best to keep writings about a man who spent so much time in France from corrupting the purity of our judicial system.
If you ever find your self in Bagladesh remember there are two possible outcomes if the police catch you sleeping with a lady you're not married to: Marriage or a rape charge.
WARNING The story is no big deal but if you are worried about the names of sites you might not want to open this one at work. With apologies to those of you who already did.
I was looking for a particular article (never found it) and came across a number of articles on indigent defense. So today is all about indigent defense around the U.S.A.
There was the obligatory lawsuit in an attempt to force a raise in compensation but the Massachusetts Supreme Judicial Court (SJC) chose a different path:
The State Attorney General decried the SJC's ruling and offered that instead of releasing people from jail their cases should be shunted to the PD's offices:
Now the governor has gotten involved and is trying to get indigent defense taken away from the judicial branch and placed in the hands of the executive branch (because we all know there's no conflict when the same branch accuses and defends). On top of that he's threatening to ban those who won't take underpaid work permanently from ever being assigned underpaid work:
And it's not the attorneys who are putting anyone in danger, or the judges - it's the Legislature underpaying and even providing faux pay. We get faux pay here in Virginia too; theoretically my cap on misdemeanor pay is $120 but the Legislature only funds $112. Think I can pay my creditors with the faux $8?
For those of you who aren't lawyers, $30 a hour looks like good pay. It is if it's a wage but this is not a wage. Before the lawyer can take any of that money for himself he must pay his secretary, his office rent, his insurance, costs of office supplies, costs of utilities and phones, the double tax that everyone who is self employed pays, etc. It takes a huge bite out of that initial dollar amount.
As to what the SJC did, I must say that I'm pretty amazed. It avoided going into the Legislative realm when it refused to increase fees (in Massachusetts of all places, who'da thunk it?). It avoided going into the Executive realm by not ordering non-prosecution of minor crimes and making the charges dismissed without prejudice so that the prosecution can bring them back at any time, once the situation is fixed. It stayed in the Judicial realm ordering unsecured bonds and dismissals, both of which are clearly within the power of the courts.
Hmmm . . . One wonders, if this is such the disaster that it is being made out to be, why hasn't the governor called the Legislature back in session to fix the situation by raising fees to an equitable rate so that those dastardly criminals are no longer set free?
Wright said he and attorneys Alonza Whitaker, the Democrat nominee for circuit district attorney, and Dorothy Williams were the only black applicants for the local post.
"Both of these other lawyers have a lot more experience in criminal law and indigent defense than the appointee," Wright said. "And I've spent 27 years practicing criminal law, including 12 years in indigent defense and three years as a Recorder's Court judge -- but they didn't even grant me the courtesy of an interview.
"It has to be racism. I can think of no other reason," he said.
However, it would seem that there might be other reasons for the rejection (at least for Mr. Wright):
"On the one hand you've got a lawyer with over 20 years of experience who distinguished himself in combat, or somebody who won't pay his taxes," Hyles said. "That's an easy choice, isn't it?"
The panel chairman said Wright's well-publicized position that he shouldn't have to pay taxes was a factor in his evaluation.
"It's not right to give someone a government position with tax revenues when he will not pay his taxes," Hyles said. "In my mind, that disqualified him up front."
Wright has had a long-running dispute with the U.S. Internal Revenue Service over tax issues. In May, he filed suit in U.S. District Court challenging the constitutionality of the income tax law as applied against African-Americans. He contends in the suit that African-Americans have been denied key citizenship rights over the years, which exempts them from application of the income tax law and entitles him to a refund of about $25,000 he's paid in income taxes from 1964-95.
I'm not sure how it got this far to begin with. If the pipe on the Defendant's person was obtained by an unconstitutional search why wouldn't the bag of cocaine found where the Defendant was searched be found an unconstitutional search after the officer concluded "the bag had fallen from Watts' person as I was patting him down and searching him."
So, I'm sitting in court with another attorney who is there to try a threatening phone call case. It's a fairly typical case of two guys calling back and forth screaming at each other over the phone until one guy tapes the other and goes to the magistrate. Although everbody in the courtroom realizes this is pretty trivial intra-family squabbling there's really not much of a defense. Curious, I ask the attorney what his defense is going to be and he tells me : "He's a hothead Yankee."
When Judges from My County Attack!! (Coming Soon to Fox)
I often have to tell my clients that they were unfortunate enough to have broken the law in one of the most conservative counties in one of the most conservative States (heck, even most of the Defense attorneys here are Republicans and there are rumors that one might be a member of the Federalist Society).
I know I've also told stories here suggesting the same thing. Of course, all you lawyers out there are a little cynical about these claims (everybody claims to practice in the worst jurisdiction).
• Create a list of potential witnesses. Supply complete addresses, phone numbers, and background information about each individual, with good notes about what the witness can say on your behalf.
[comment] Get this list to your attorney at least three weeks prior to trial. If you get me the list the week of trial, or tell me about the people 15 minutes before trial, I'm not going to be able to get them subpoenaed. And, if they're not subpoenaed the judge isn't going to delay the trial because they aren't in court.
• Make a time-line of what happened, with dates and times of day, as appropriate.
[comment] If you do this step, don't lie. If you cannot do this step without lying, don't do it.
• Draw diagrams of the scene of the incident, with actual measurements, if possible.
[comment] This can be very helpful. When a lawyer has a large caseload he does not have time to actually visit many scenes. But use some common sense. If you are charged with reckless driving-speeding 20mph over the limit and you were the only car on I-95 at 4 am, a diagram of a straight road probably isn't going to be very helpful.
• Set up an appointment to sit down with your lawyer and go over the police report page by page, looking for contradictions and lies.
[comment] Well, in Virginia they don't have to give us the police report (though several do). I primarily want to meet with you to get the information in the first three bullets.
I would only add one more item: if you make an appointment to see your attorney move heaven and earth to get there. The percentage of court appointed clients who show up for their appointment is somewhere about 25-33% (at least for me). While I have become quite adept at trying cases after meeting my client for the first time out in the hall it's not my preferred way of doing business.
Is it too late for me to become a Supreme Court clerk?
I could go back and retake the LSAT and ignore the Princeton Review's advice so that I get a higher score.1 I could put some actual effort into applying to the Ivy league.2 I could live the One L experience of scheming, hiding books, and freaking out when exams came. I could actually participate in the write on for law review3 and spend the next two years telling law professors that they can't use the word "since" in thier articles because it has a duel, ambiguous meaning. Then I could send out a couple hundred resumes to "feeder" judges, with a cover letter explaining how I came to walk on water at a very early age, that I'm now looking for the more serious challenge of checking to make sure that the 20 string cites in a brief, averaging 15 cites apiece, are all on point, and that I think this will allow me to die a happy and fulfilled man. When I complete that clerkship I can send my resume off to each of the 9, with a cover letter explaining how much I enjoyed being an appellate clerk (especially that 30 page memo I had to research and write on the effect of Utah's Dog Liability statute on a herd of beef owned by an Alabama company which were run off a cliff by a Utah family's dog while vacationing in New York4) and that I think being a Supreme Court clerk would not only allow me to die a happy and fulfilled man, it would also guarantee me a place in the firmament. Then, after a year or two more I could go off and get a $150,000 bonus from BigLaw just for walking in the door.
On second thought, I'll just stay where I am.
---------- ---------- ---------- 1 The Princeton Review suggested that if unable to complete a section you look up, figure out which letter had been used the least, and fill in the rest of the section with that letter. While doing the thrice-damned logic puzzles I screwed one up and had to redo it. I didn't have enough time to do the last question. Foregoing the age old wisdom of "When in doubt, Charlie out," which I think I had used since kidergarten, I took the Review's advice. I looked up and saw that "D" was the least used and filled all the rest with "D". Not a single one of the answers were "D"; three of the answers were "C". I would have scored in the 170's.
2 Yes, I did apply to Harvard but it was half-hearted. One of my fraternity brothers was absolutely beside himself because I hadn't applied to any Ivy League schools. One night, in the middle of a party, he and a couple other Brothers cornered me and made me promise to apply to an Ivy League school if they paid the application fee. So, I filled out the application and one of them ponied up the check. It was way too late to apply so I basically forgot about it after I sent it in and made plans to attend W&L. On the day I graduated from Centre I cleaned out my room and was getting ready to leave when I decided to make one last run by the campus post office. The only piece of mail in the box was the rejection letter from Harvard - the only school which rejected me. :-(
3 Yep, I chose not to try to write on to law review. I regret not this decision. I had a lot more fun doing moot court and being on the moot court board (we got to travel around the country to competitions). And I didn't have to give up all my weekends sitting in the library checking obscure 17th century legal references.
4 Thereby making me the world's foremost expert on a subject which shall never again come before a court anywhere at any time.
Yes, I did place the ACS blog in my Exemplary section (and me a card carrying Federalist). So far it has been well written and covered some interesting topics. I find that philosophically I am not in agreement with many things written therein but I also find that things are written intelligently rather than in the poisonous form of political screed so often seen elsewhere. Right now it shows a great deal of promise.
Attorneys understand that the judge will be shown their complaint and given an opportunity to respond -- all in secret, of course. Thus, they reasonably fear that, if they appear again before the judge, they will be punished for their complaint in some subtle or not-so-subtle way.
Yep, and if you already believe a judge is ruling consistently against you because your great-great grandfather fought on the wrong side in the War of Northern Aggression you probably figure all that a complaint will do is give her a chance to better cover herself and rule more harshly against you and your clients.
While I'd like to think judges are superhuman, I've got to figure that they are actually humans like me (or at least that I wouldn't be filing complaints against those who are superhuman). I know if someone I already viewed as suspect started trying to damage or destroy my career I'd not be happy. Hopefully, I'd keep it in check but when somebody calls me an SOB in public it's not conducive to my treating him with the jocularity I might others.
That's an amazing decision. If applicable to Virginia (figure the odds) it would have all sorts of implications. No more show causes for failure to pay fines. Maybe all the stores who cash questionable checks would have to stop using the courts as their collection agencies. It might even call into question the gazillion convictions each year for driving suspended after Virginia has taken people's licenses for not paying their fines within 15 days.
As of Oct. 1, the state's local district attorneys will be required to open their investigative files in felony cases to defense lawyers if requested before trial. The law says DAs would provide in part police investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial.
Defense attorneys, also upon request, also would have to provide the state with witness lists and on what ground they plan to defend their client - whether on an alibi or by insanity, intoxication or self-defense, for example.
And why might they not be getting convicted? Hmmm . . . Could it be because everybody recognizes that at .08 most people aren't drunk? I don't see a lot of .08-.10 DUI charges coming to court and most of the time those are guys who got arrested at a traffic check point or got stopped for some totally unrelated reason. There was no problem with their driving, they were just in the wrong place at the wrong time.
To be fair, there is the odd man who only drinks once a year at the firm's Christmas party and can't hold his booze. He gets tagged going home because he is weaving within his lane and is guilty. Of course, as this guy sits in the gallery sticking out like a sore thumb because he's the only Defendant wearing a suit that day and he is nervous (as opposed to the practiced nonchalance of those in court for their 8th or 9th time) everyone knows that this is most probably the only time this guy will ever see the inside of a courtroom and a little common sense often prevails, allowing him to be convicted of reckless driving instead of a DUI.
.06? And thus we create yet another law which people ignore. Sure. Why not another one? We already have the rights of passage for young adults as they drink underage and smoke marijuana illegally while the rest of us look the other way because not many actually believe in the laws. Then we're shocked, shocked, I say, when they move on to more serious drugs and/or crimes after we have taught them that laws are not legitimate.
The murder of a man pretrial leads to a mythos surrounding a Defendant.
With the exception of the last few paragraphs this is entirely the prosecution's view. I'd like to know the other side. Or, perhaps the NYTimes could have troubled itself to actually interview a witness?
Yeah, I know it wasn't a major article and probably didn't get a lot of resources. It's a shame, this looks like this could have been very interesting if it had received more thorough coverage.
Officer pleads guilty to throwing a walkie-talkie at a fleeing suspect and hiting him in the head, causing death. A State grand jury clears him, the family gets a $750,000 civil settlement, and now he's pled guilty to federal charges of violating civil liberties.
Can't remember the last time I heard of an officer getting charged by the federal prosecutor around here. Actually, I can't ever remember the federal prosecutor doing it. Maybe it's because people down here believe in federalism a little more. But then how do you explain Exile . . .
Considered by many to be one of the funniest people around, you are quite an entertainer. You've also traveled to the far reaches of what you deem possible, often confused and unsure of yourself. Life continues to jostle you around like a marble, but it's shown you so much of the world that you don't care. Wacky adventures continue to lie ahead. Your favorite number is 42.
Scene - client and I are in the lockup area talking about his case before his preliminary hearing for felony petit larceny. I have just explained (yet again) the fact that this day is only for a preliminary hearing.
Client: I told you to get me a deal and make this a misdemeanor.
Me: You have 8 prior larcenies, you were caught wearing the clothes store security saw you carry into the changing room and you made a full confession to a police officer after signing a Miranda form. The prosecutor laughed at me when I asked her for a deal.
Client: A guy in my pod has almost 100 charges and he's getting a deal. Why can't I get one?
Me: Where was that guy charged at, [jurisdiction X]?
Client: No, in this county. Why can't you get me a deal?
Me: Maybe something will happen in circuit court when we have a different prosecutor.
Client: If I had a paid lawyer, he'd have got me a deal.
(Based on many a conversation but reflecting none in particular)
Let me explain. Jury trials in Virginia are not often a shield to defend the innocent, they are usually a sword to punish the guilty. This is because the jury sentences in Virginia. Juries cannot suspend any part of a sentence, cannot run sentences concurrently, and are by law denied the sentencing recommendations that judges get. Therefore, if a Defendant is charged with a class 4 felony (2-10 years), a class 3 felony (5-20 years), or a class 2 felony (20-Life) most often he is faced with the inescapable threat that if he exercises his right to a jury trial and is found guilty he will be sentenced to the mandatory prison time. Even if there is no mandatory sentence juries tend to sentence higher than judges. A judge gets a sentencing recommendation and usually follows it. Additionally, quite often a sentencing recommendation will be far lower than the mandatory sentence; in these cases the judge can, and usually will, follow the recommendations by suspending a portion of the mandatory time. But wait, there's more. In Virginia not only must the Defendant waive his right to a jury trial both the prosecutor and judge must waive their right to a jury trial. Thus, in serious cases it is not uncommon for a prosecutor to threaten to exercise her right to a jury trial and I've seen cases go to jury simply because the Defendant refused to plead guilty to everything the prosecution charged him with. However, the worst was probably the day I was sitting in court and heard a judge tell another attorney that if his client pled not guilty the judge was going to require a jury trial.
And your next question is how the system outlined above doesn't tread heavily upon a Virginian's right to a "trial, by an impartial jury of his vicinage", Va Const Art I sec 8, or an American's right to "an impartial jury of the State and district wherein the crime shall have been committed?" US Const Amend VI.
Well, while the punishment "shall be ascertained by the jury" it can be suspended by the judge. Therefore, the jury is merely setting an upper limit beyond which the judge cannot impose incarceration. The Defendant has a right to a sentencing hearing with a presentence report. The judge is then free to suspend any excessive prison time the jury imposes and render the same active prison sentence that he would have had there never been a jury trial. The Virginia courts appellate have found that this solves any constitutional problems.
It's a nice theory and probably correct in finding that the statutory scheme is de jure constitutional. The only problem is that those of us out in the trial courts live on the other side of the de jure / de facto line. In reality judges rarely change a sentence which has been handed down by a jury and when they do often do not lower it to where the sentence recommendation would have had it. Considering this, it is probably malpractice to recommend a jury trial in the vast majority of cases. I think that most jury trials occur when Defendants know they are going to spend a large amount of time in prison whether found guilty by a judge or jury, when Defendants will face the same penalty from either a judge or jury (Virginia Exile), when the trial takes place in an urban area where the population has equal parts serious distrust of anything the police do in the lower classes and very liberal tendencies in the upper classes, and those cases which occur every so often where the Defendant is either unable or refuses to understand the consequences of his actions. And even if you add all those together, only "1.3 percent of all criminal cases in circuit courts in 2003 went to a jury trial." That says a lot about the lack of confidence that Virginians and their lawyers have that a just result can be reached through a jury trial.
Of course, I'm a Defense attorney and an avowed advocate of the right to a jury trial. If I could ever truly recommend them to my clients I'd be happy trying one a week. With that in mind you should probably be somewhat dubious of my view of the way the system currently works. So here are passages from the Virginia Criminal Sentencing Commission: Annual Report 2003:
“Virginia is one of only five states that allow juries to determine sentence length in non capital offenses. Since the implementation of the [no-parole] system, Virginia juries have typically handed down sentences more severe than the recommendations in the sentencing guidelines. In fact, in FY2003, as in previous years, a jury sentence was far more likely to exceed the guidelines than fall within the guidelines range. By law, juries are not allowed by law to receive any information regarding the sentencing guidelines to assist them in their sentencing decisions.
. . . .
In FY2003, the Commission received 351 cases tried by juries. While the compliance rate for cases adjudicated by a judge or resolved by a guilty plea was at 80 percent during the fiscal year, sentences handed down by juries fell into compliance with the guidelines only 37 percent of the time. In fact, jury sentences fell above the guidelines recommendation in 42 percent of the cases. This pattern of jury sentencing vis-a-vis the guidelines has been consistent since . . . 1995.
Judges, although permitted by law to lower a jury sentence they feel is inappropriate, typically do not amend sanctions imposed by juries. Judges modified jury sentences in less than one-fourth of the FY2003 cases in which juries found the defendant guilty. Of the cases in which the judge modified the jury sentence, judges brought a high jury sentence into compliance with the guidelines recommendation 26 percent of the time. In 39 percent of the cases, judges modified the jury sentence but not enough to bring the final sentence into compliance.
In those jury cases in which the final sentence fell short of the guidelines, it did so by a median value of just over one year. In cases where the ultimate sentence resulted in a sanction more severe than the guidelines recommendation, the sentence exceeded the guidelines maximum recommendation by a median value of less than three years.
Note that the last sentence talks about the median rather than the average difference. I suspect that the average is much higher. Unfortunately, I cannot find anyplace where I can find distilled statistics to confirm that suspicion (nor raw stats either but I'm not sure how I'd do with them anyway).
A Season of Mists looks like it's going to be a good addition to the blawgosphere.
ambivalent imbroglio points to the confidence it takes to be a PD while Arbitrary & Capricious points out how it's become more difficult to defend people as they've switched from mellow potheads to meth freaks.
The Prosecutor's Spot wonders if he did the right thing by showing leniency to a 13 year old boy and Crime & Federalism points to a prosecutor who has gone tooo far.
On the other hand, I respectfully dissent points out what life is like for those of us who eat what we kill.
Blonde Justice asks how people explain "beyond a reasonable doubt" to juries.
Public Defender Dude notes that if the Kobe case folds he will lose an example of an innocent man convicted.
True Believer points out that the ABA is going to recognize a specialization in DUI defense.
Begging the Question offers a few questions that you probably should avoid in your Supreme Court argument.
Non Legal but VERY IMPORTANT: From SW VA Law - If you are walking in the woods in the next two weeks and a cube of fish meat falls from the sky and hits you in the head, you are not having a break with reality. However, you might want to watch out for the raccoons.
United States v. Martin (4th Circuit) Are State Trial Systems Unconstitutional?
Subject: Enhancement of sentencing when a Defendant has demanded her right to a trial de novo in superior court.
[facts] Defendant was convicted of a misdemeanor in a North Carolina district court and sentenced to 60 days in jail. She exercised her absolute right to a trial de novo in superior court. While waiting for her trial she was sentenced in federal court and the misdemeanor conviction was counted against her, adding 2 points to her criminal history. Subsequently, the charge was dismissed in superior court without prejudice.
[finding] The trial court was incorrect in applying 2 points to Defendant's criminal history. The trial court should have only applied 1 point. The error is harmless because it does not change the sentence.
[reasoning] North Carolina has a fairly typical lower court - higher court dynamic wherein misdemeanors are tried in lower courts. These courts are without a record and do not provide an option for a jury. To counter these infirmities anyone tried and convicted in the lower court has an absolute right to a trial in the upper court (even if she pled guilty).
The prosecution portrays this as an appeal and asserts that 2 criminal history points should be added (for a conviction with 60 days) because an appeal does not invalidate a conviction. However, the prosecution is wrong because the higher court engages in a trial de novo rather than a review of the findings of the lower court.
The Defendant portrays this as a decision void ab initio after the Defendant calls for the exercise of her option for a trial de novo. The court rejects this because a Defendant can withdraw her demand for a trial de novo and the case would return to the lower court for imposition of the original sentence. Therefore, it is merely voidable.
Relying on the reasoning supra, the court finds the decision is voidable rather than void. Therefore, the exercise of the right to a trial de novo is actually a stay of the lower court sentence. Under sec. 4A1.1(c) criminal history points are increased by 1 point for a stayed decision. This is what should have been done in this case.
[the dicta] The court recognizes that there are constitutional problems with its decision. This sort of State trial system actually consists of a single bifurcated trial. Because the trial in the inferior court does not have full constitutional protections there is substantial doubt as to the reliability of the inferior court decision
The fact that the lower court does not allow a jury trial and that, prior to a jury trial in the superior court, this "conviction" can be counted in a federal sentencing raises serious questions as to the constitutionality of the state court systems. The constitutional questions in the inferior court are wiped out by the absolute right to a trial de novo with a jury. The fact that there are no consequences from the inferior court's adjudication makes this system constitutional. The court's interpretation of the sentencing guidelines "would seemingly constitute a significant collateral consequence."
[comment] The court's finding that (1) the sentence is stayed and its explanation that (2) in this sort of state trial system there is actually a single, bifurcated trial are directly at odds with one another. The answer here would seem to be that since it is a single, bifurcated trial which is concluded in the superior court there was no disposition at the time of federal sentencing and therefore no points should have been awarded. The fact that the superior court dismissed the case, rendering the lower court decision a nullity, is strong evidence in favor of this interpretation. It wasn't an appeal; it wasn't a void decision; it wasn't a stay; it was a trial in progress wherein no conviction or sentence had been imposed. A great advantage of the interpretation I offer is that it avoids any constitutional question.
As for the court's constitutionality conjecture, the court's interpretation is absolutely backward. The court's interpretation does not call the State systems into question - it calls the constitutionality of the criminal history points in the guidelines, as this case interprets them, into question. If the court's interpretation is correct it runs contrary to long standing (pre-guidelines) precedent which declares this sort of State system constitutional. However, a more fitting interpretation of this added criminal history point is that it imposes a punishment on a person prior to her ability to exercise her constitutionally guaranteed right to a jury trial. There is no doubt that if the Defendant in one of these State systems could only avail herself of the bench trial in the lower court that the system would be unconstitutional. Therefore, the actual trial takes place in the superior court. The hearing in the lower court is, in effect, a preliminary hearing. The Defendant then decides whether he will acquiesce to the decision of the constitutionally deficient lower court or exercise his right to an actual trial. Seen in this light, this court's decision actually punishes the person being sentenced in federal court for a crime of which she has not been convicted.
A Week in the Life of Criminal Defense Attorney (sorta)
Actually these are selected days from the last two weeks. The rest of the days were either light days or had things occur of which I cannot write.
Wednesday: In the afternoon I go court for Client's preliminary hearing on his felony discharge of a firearm in a house. The only problem is that Client hasn't shown up. After waiting for a while I finally go up have the clerk call the case. The prosecutor and I point out that one of the court papers has a different date and it's possible the client got confused. The judge isn't having any of it. He remembers Client standing in front of him and telling Client the correct date. Still, he allows that he will withdraw the capias for arrest if Client shows up at court prior to 4:30.
So I run across the hall to call the various numbers I have for Client, hoping that one will work. Finally someone picks one up and the conversation went something like this:
Me: Ma'am, is Mr. Jones there?
Female: Who is this?
Me: Ma'am this is his attorney and he's supposed to be in court today The judge has agreed not to have him arrested if he turns himself in by 4:30. But he's got to turn himself in by 4:30.
Female: That's going to be kinda hard since he's dead.
And you know what? When I check the local paper online it has his obit. So I print it out and take it to the judge and he decides to withdraw the capias.
Thursday: In the morning my first case is a possession of drugs in a jail. I talk to the prosecutor and he agrees to drop it to a misdemeanor 12 months with 6 months suspended (3 months to actually serve). Client jumps all over that. Then I drive off to another county where I have a felony trial. I arrive at 9:45, 15 minutes before circuit court starts in that county. Then I walk into the courtroom and it's in full swing. I look up at the prosecutor and he flashes me nine fingers; then he signals that everything is fine. Then I point to the back to let him know that I am going to the lockup area to see my client and I turn to leave. At that moment a voice comes from the bench: "Mr. Lammers, either sit down or leave the courtroom." I say "Yes sir" and scoot out the back door. Client is in the witness room and I go talk to him there. Then I go talk to the witnesses he had me subpoena from the juvenile detention center.
Client's case is a forlorn hope. The teacher from the juvenile facility is called and testifies that my client attacked him. Some of his testimony is a self-serving but it's clear that he and my client got in a fight. In my cross I screw up and ask one question too many and some pictures of the injuries get in which should not have (still kicking myself for that one). Then I call two of the kids from the detention center and my client. Their testimony varies as to exactly what occurred after the fight began but they are all clear in that they state the fight started when the teacher shoved the kid. So it's a swearing contest which the judge decides in the favor of the teacher. Yeah, I know, you're shocked.1
---------- ---------- ---------- 1 The weird thing about these cases is that because my client was found guilty he will probably be held for less time then he would if he just remained in juvenile detention until he was 21. ---------- ---------- ----------
In the afternoon I go to another county's circuit court to ask that my client be released from a drug treatment program. Client has been kicked out of his residence and is living in his girlfriend's car so that he is close enough to attend the mandatory meetings. After hearing this from client and confirmation from his counselor at the drug program the judge decides to let him out so that he can move in with his mother in NYC.
Next stop is Federal Court. Client got probation but hasn't been making his meetings and turned up hot for marijuana (twice). The probation officer recommends work release, the prosecutor recommends work release, I ask for work release and the judge sends Client away to jail for 60 days specifically denying him work release.
Monday: In the morning I have a preliminary hearing scheduled for a client who used his brother's name in order to avoid a driving with a suspended license charge. The problem is that in so doing he signed his brother's name to a bunch of papers and swore to the magistrate that everything was true in those papers. He is charged with 6 counts of forging a public document (2-10 years), 1 count of perjury (0-10 years), and 1 count of driving suspended. There is no defense (client confessed) but the prosecutor agrees to drop all but two felonies if we waive the preliminary hearing and agree to plead guilty. Client jumps at the offer.
Then I go up to circuit court for sentencing for a client who has been found guilty of uttering and carrying drugs into a jail. She didn't show up for her sentencing hearing previously and just got picked up recently. She's been rejected for the drug treatment program I wanted to get her into because she never went to the interview. So I get up and do my best tap-dancing in an attempt to get the judge to allow her a continuance so that she can go get evaluated for the program. The judge decides to continue the case for a week but revokes my client's bond because he "knows she'll get interviewed quickly if she's in the jail."
In the afternoon I go the circuit court for a sentencing but Client has not come to court. The case gets continued for a month and a capias is issued for Client. Then I go to the court next door for a show cause. Client has 20 years suspended over his head on each of 4 charges (2 X B&E;2 X grand larceny). Ordered into a drug program he failed out and was previously show caused at which time the judge resuspended all the time and reordered him into the drug program. He failed out again and this is the show cause I'm representing him on. I'm up there giving it my best talking about his obligations and angling for the least amount of jail time possible when I look up at the judge and realize that not a thing I'm saying is impacting. He is not happy that he gave Client two opportunities (on B&E's, no less) and both were wasted. Still, when all is said and done, he only sends Client to prison for two years.
After finishing that I scoot downstairs to general district court for a client's trespassing charge. Client should be found not guilty because he was sleeping over at a friend's house when the police came to arrest his friends because they were evicted two days previous. Client didn't know and told the officers but he had a number of other warrants so they just added the trespass into the mix. When I get to the courtroom I find out that client's case has already been called and Client agreed to 90 days suspended. I'm a little perturbed that is case was handled without my presence so I go talk to the clerk about it. She is beside herself for having called my case without me and it turns out that happened is that when all the other charges had been handled on a different date that paperwork had been seperated and my name was on the other papers. So then I go back to see if Client wants me to reopen the case and I find a client who is jubilant that he is getting out of jail today and doesn't want anything to mess that up. So I don't do anything.
Tuesday: The only case I have today is a felony petit larceny (0-5 years). Nothing too out of the ordinary. The witnesses told police that Client went to the meat department with an empty cart and just started throwing steaks in it; they found this a little interesting (1) because most people look at $20 steaks before they decide to buy them, and (2) because most people buying steaks aren't obviously homeless. Then Client wheeled the cart off to a corner where no on could see him and when he came out of the corner the cart was empty. Being of a suspicious nature the store manager then confronted Client who pulled over $100 worth of various meats out from under his shirt. On top of that he confessed. I get the prosecutor to offer misdemeanor petit larceny, 12 months - none suspended. Client balks so I go back out and with a little more persuasion get the prosecutor to offer 12 months with 2 suspended. Client finally agrees to this.
The plant on the left is the Texas Star Hibiscus and the one on the right is marijuana. Apparently 10 members of the Harris County, Texas Organized Crime and Narcotics Task Force couldn't tell the difference. The hibiscus plants were in the front yard and based upon their presence a full scale raid of the house took place. But wait, if you think it's bizarre that members of a narcotics task force didn't know what marijuana looks like you need to know that it gets even stranger:
So, I guess the owner was going to cut a cantaloupe in half, hollow out one side, poke a bamboo shoot into it, and smoke his hibiscus through the improvised pipe.
From this point on every time a Harris County officer tries to use the artifice of claiming that he acted "based on my training and experience" the defense attorneys should have a field day.
Well, I'll tell you how shows like CSI have helped me. They have led to the easy availability of books which explain forensic evidence and are easily understood. So now when I want to find out how things work I can usually find a book that explains it in English at my local Barnes & Noble instead of hunting around for some technical manual or college text book where there will be three foot long greek/latin words and pages upon pages of charts to decipher.
As to how it effects juries, I'm not sure it has in any of my cases. Of course, I make the purposeful blindness argument because often police seem to stop looking for evidence if it might place in doubt the guilt of the person they've decided is guilty. However, this argument has been made as long as anyone can remember and I think it's a hit or miss proposition. I find juries to be amazingly perceptive as to whether you are making a desperate argument or the police really have purposefully chosen not to take fingerprint evidence or check to see if the hair at the scene matches your client. Of course, being a big fan of juries I might be a little biased.1
--------- --------- --------- 1 My biggest gripe about the Virginia system of criminal law is the taking of a jury is basically banned in serious cases except in extreme desperation or when used by the prosecutor as a weapon.
BD forwards this article to me about the Chief Justice of Virginia's Supreme Court meeting with public defenders. It goes on to discuss what is being done to fix the problems in indigent defense. Of course, we all know what would solve the problems: Increase by at least 100% the caps on payments to court appointed attorneys and require both the Commonwealth and localities to match every penny they give to prosecutors with a penny given to the public defender (where there are PD offices). Of course, we all know this isn't going to happen either so I was just about to dismiss the article as another case of hand wringing and non-solutions when I cam across this statement:
Virginia has some of the most stringent discovery rules in the country. Defense attorneys are not allowed to see complete police reports if the prosecutors decide to withhold them. . . . . “I don’t think it makes the system unfair,” said Loudoun Commonwealth’s Attorney Jim Plowman when asked Wednesday about Virginia’s discovery rules. “We have to give [the defense attorneys] everything and they give us nothing, so in that respect it is not unfair.”
Now, that's not really true. Under Virginia Rule 3A:11 if I file for full felony discovery I am required to turn over scientific tests/reports, provide the prosecution with my client's alibi, and give the prosecution any reports I have concerning my client's mental condition (assuming any of the three are relevant to the trial).
There is a striking disparity in how different prosecutors' offices handle discovery. The best give me a copy of my client's record, a copy of police reports, and a copy of all statements. Most at least give me a copy of my client's record and copies of statements made by my client. Some won't really give me anything. I am refused a copy of my client's record but allowed to take notes from it in the prosecutor's office; usually I receive my client's statements, and the prosecutor picks and chooses what he's going to tell me about the rest of the evidence. While I've not experienced it, I hear horror stories about jurisdictions where no discovery is given unless the Defense attorney goes to court and forces the prosecution to disclose it under order from the judge.
As an example, I have jpeg's below of a discovery motion (the top two) and a reply (the last one; click on them to see larger versions). Three caveats: First, it is Rule 7C:5 discovery from general district court (preliminary hearings and misdemeanors) and this rule does not deal with expert or alibi evidence (I guess it's assumed not to be at issue in district court). Second, the names have been changed to protect just about everyone. Third, they are from different cases (done out of an abundance of caution).
After you read them, you will realize why, no matter how many times the Virginia courts appellate say it isn't, the primary purpose of the preliminary hearing in Virginia is to get discovery. Most judges realize this and allow some lattitude in questioning as long as it doesn't turn into too much of a fishing expedition.
[addendum] When I click on these jpegs in Explorer it brings up small pictures. If you place the mouse pointer over the picture for a second a box will appear at the bottom right and you can click it to make the pictures large enough to read.
Case update: At this time the trial has been delayed because of massive discovery involved. The Commonwealth is trying to tie Mr. Kringle in to millions of prior trespassings and we are tracking down as many as possible to prove that he had permission to enter the residences. We believe our "milk and cookie" defense will neutralize this aspect of the case.
As always, we look forward to the complete exoneration of our client.
4th Circuit - Alteration of a Plea Agreement by Judge & Prosecutor
United States v. Wood - Subject: (1) Oral modification of a plea agreement. (2) Whether the probation officer is the "government" under the "safety valve" provision.
(1) [facts and procedure] The plea agreement clearly states that the Defendant agrees he is accountable for 500g of crack unless the presentence investigation finds a lesser amount. It goes on to state that at sentencing Defendant's attorney will argue that he is responsible for less than 1.5kg of crack. Apparently, the court finds that there was less than 1.5kg and refuses to hear evidence or argument on the weight involved in the sentencing hearing.1
[finding] A plea agreement is not merely a contract between two parties; it “implicates the integrity of the criminal justice system.” The prosecution is held to a higher standard than the Defendant for imprecisions or ambiguities in the plea agreement and beyond that “[t]he Government’s heightened responsibility extends beyond the plea negotiation to all matters relating to the plea agreement.”
The prosecution can alter the agreement through his statements in a hearing involving the case (even after the court has accepted it). The prosecution can alter the agreement by not correcting the trial judge as the judge makes an error and mischaracterizes the plea agreement to the Defendant.
In this case “the district court repeatedly suggested that Wood would have the right to challenge the drug weight finding at sentencing.” The prosecution not only acquiesced, he made at least one statement which seemed to accept the judge's characterization.2 Therefore, the plea agreement was altered. The fact that a court cannot alter the terms of a plea agreement is of no moment because the court lays the responsibility squarely at the feet of the prosecution for not objecting as well as making a statement at variance with the written plea agreement.
The fact that the Defense attorney understood the clause in the plea agreement and explained it to his client does not matter. It is the Defendant's understanding which is at the core of the matter and when the judge, without correction, mischaracterizes the terms of the agreement the Defendant is entitled to rely upon the mischaracterization.
The fact that the prosecution's alteration and subsequent breach of the plea agreement was inadvertent is of little importance.
The remedy is specific performance. Mr. Wood gets a hearing as to weight.
(2) A probation officer is not the government under the 18 U.S.C. Sec. 3553 (f) “safety valve” provision. The Defendant must cooperate with the government in order to qualify.
[comment] Just when you think you've gotten an appellate court in its nice little stereotypical box it goes and does this. This strikes me as a dang good decision for those of us out there representing Defendants. If the judge makes any mistake in his characterization of the plea agreement and the prosecutor doesn't jump up and immediately correct him it changes the terms of the agreement.
Given the vagaries of the English language, the statements made which always may be interpreted to mean something different by someone else, and the ability of clients to hear what they want to hear (and rely upon that improper understanding), you give a decent appellate lawyer a transcript and he's going to be able to make hay in all sorts of cases.
As I read it the case is well decided. Still, I'm a little surprised at the Fightin' Fourth walking away from the four corners of a contract. What next? Will the esteemed judges decide that a stop for an air freshener hanging from the rearview mirror is a pretext stop because the drug dog was there 10 seconds after the stop? (don't bet the house, folks)
---------- ---------- ---------- 1 The opinion is not clear on the amount the judge decided was attributable to Mr. Wood. There were estimates from the co-conspirators of 285.5g and a guesstimate by the probation officer of 1.25kg based on co-conspirator statements that Wood had a sandwich bag and 2-3 kleenex boxes of crack. Math was never my strong point but that adds up to over 1.5kg as I do the addition. I can only assume that the judge did not give credence to the guesstimate and only found the 285.5g.
2 In fairness, the prosecutor seems to have believed that the weight would be over 1.5kg and therefore an argument as to weight would be required. Nevertheless, his statement that “there will be a more full hearing at sentencing concerning the drug weight issue” does anticipate an argument as to weight – just not the one that's at issue in this appeal.
Apparently there is a new nominee for the 4th Circuit. While there might be some fussing, I predict a fairly quick Senate endorsement because I'm pretty sure he's got friends on all sides in D.C.
Farnsworth v. Commonwealth: Subject: If a felon has his right to possess a firearm restored in another State does he have the right to possess a firearm in Virginia?
The court adopts a plain reading of Virginia Code § 18.2-308.2. Under this section once convicted of a felony in "the United States or any territory thereof" (West Virginia) even should an "other appropriate authority" (West Virginia) restore a person's civil rights that person must either "petition the circuit court of the jurisdiction in which he resides for a permit to possess or carry a firearm" or receive a pardon from Virginia's governor. As neither of these events had occurred the person is guilty of possessing a firearm as a felon.
The court finds that the Defendant did not properly preserve his appellate argument that under U.S. Const. Art IV, sec 1 the Commonwealth of Virginia is bound by West Virginia's restoration by "full faith and credit" requirements.
[comment] It's a harsh outcome but I think it is an accurate read of the statute. I just keep wondering how many people in the Commonwealth have come here thinking that they have no problems and are in violation of a law that would mandate their imprisonment for 2 or 5 years.
[facts and procedure] Defendant delivered marijuana to an inmate. Defendant pled guilty to midemeanor possession of marijuana in general district court and then tried to use that conviction as a bar to the felony delivery charge in circuit court.
[finding] Because the statute allows a conviction for conspiracy to deliver, possession of marijuana is not a lesser included offense.
[comment] As I read the drug section of this statute there are 3 separate crimes: (1) delivery, (2) attempt to deliver, and (3) conspiracy to deliver. Either (1) or (2) should be barred by jeopardy. (3) would not but the decision lacks a description of facts sufficient for me to come to a conclusion as to whether there was a group of people involved or if this was just a deliverer and a recipient (and thus not a conspiracy).
This comes across as a Defense attorney being procedurally clever (cudos), the prosecutor not catching it, and the courts moving to "do justice." I really want to know the facts here and find it a little curious that there isn't even a paragraph explaining them.
I get out of court about 2:30 and I've not yet eaten. On my way back to the office I stop at a local bar and get a coke and some fish & oysters. After I tell somebody who recognized me as a lawyer that I don't do bankruptcy and recommend another lawyer, I finally sat down to eat.
While I'm eating I hear the semi-drunk guys behind me at the bar start to discuss the 9th Circuit. First, I find out that Scott Peterson is going to be found not guilty because the trial's in the 9th Circuit. Then I learn that the reason O.J. was found not guilty was because of the 9th Circuit. In fact "you can't get convicted of murder in the 9th Circuit unless they want you to." Then, before they returned to the more important discussion of the comparative length of NASCAR pit rows, I finally learned that you can't convict almost anybody out there because of the 9th Circuit.
Now, wait one sec. Lest ye think this is merely a plebeian attitude I point you to part of the Blakely argument Monday in the 4th Circuit:
O.K. All that said, I have one request. Those of you who are out there writing practicums for those of us that don't have time to do it for ourselves (CLE's, legal magazines, law review articles, etc.) please, please, PUH-leez remember that if I quote a case from the 9th Circuit the reaction above will be played out in court. I know this is wrong. I know it is biased. I know it is dumb. I also know it is true. I need cites from other places - preferably southern or mid-western. Please. In addition to the numerous perfect cases from the west coast, give me a semi-useful cite from the 5th Circuit, or Alabama, or Ohio, or . . .
As everyone who's been reading this blog for a while probably realizes, I believe the guidelines remain constitutional with only the departures1 for unproven / unadmitted acts unconstitutional. Assuming that I am right, the action which the 4th Circuit recommends are all moot once the Supreme Court issues its opinion in this matter.2
But wait, there's more. What if the 4th is actually trying to shape the question as it is considered in the Supreme Court? By favoring two diametrically opposed viewpoints and ignoring the third the court is adding cards to the hands of those briefing to the Supreme Court. It allows them to paint the situation as a three pronged Hobson's choice: find the guidelines constitutional or they're out completely or, if you take the third choice, create massive chaos as every Defendant since the Blakely ruling files motions and comes back to court for sentencing. On a pragmatic level the first choice is far, far easier. Now, it's unlikely that any of this maneuvering will effect the votes of Scalia, Thomas, Stevens, Ginsberg, or, for that matter, O'Connor, the Chief Justice, or (most definitely) Breyer (who is too heavily vested in the guidelines to back down now).
I leave it to you to extrapolate on this further. I gotta go to court . . .
---------- ---------- ---------- 1[addendum] Professor Berman was kind enough to point out that "departure" may be imprecise. Let me clarify. By departure I mean any upward "adjustment" which would have been made prior to Blakely from the base sentence composed of the intersection of the client's record with his indicted charge. I apologize for any confusion. In my rush this morning I fell into courthouse slang.
2 I think that this is the most sensible reading of Blakely and am suspicious that too many courts have been entirely too eager to declare the guidelines entirely unconstitutional. In my view most of this rises from two points of origin: (1) a large number of judges who have chaffed under the guidelines and the fact that they render the judge almost meaningless in most federal criminal cases, & (2) a minority of judges who want to favor the prosecution, or at least feel there is a need to be "fair" to the prosecutor, and think that the severance of upward departures unfairly burdens the prosecutor and therefore must be gotten around by declaring the guidelines unconstitutional as a whole and then actually following them as "recommendations."
Welcome to everyone who has come here from the Daily Press article. I hope you find this page interesting.
(1) To clarify my "tempest in a teapot" comment: Basically, I meant that in most cases the federal prosecutors will now indict every charge they intend to prove rather than indicting one charge (usually conspiracy) and then putting in evidence of all the other charges and aggravating factors during the sentencing hearing. Prior to the Blakely decision what you were charged with didn't really matter, a Defendant was sentenced to the worst crime the government alleged post conviction - even if the jury never even heard about that crime at trial. Perhaps the best explanation is from a trial court in Mass:
"[T]he Guidelines introduced a concept known as “real offense sentencing,” based on an offender’s “relevant conduct.” Pursuant to this approach -- and in keeping with the goal of curbing judicial discretion -- a judge must first determine the offender’s “relevant conduct” from materials formally placed before him primarily by the [prosecutor]; then the judge must impose a sentence based on the offender’s “real offense,” without regard to the actual offense of conviction." . . . "[T]he concept of “real offense” sentencing as practiced under the Guidelines not only affects where -- within the permissible range -- an offender ought be sentenced, it frequently adjusts that range upward considerably. No state system –- not one –- has adopted this approach. The result has been the routine sentencing of offenders on the basis of crimes with which they have never been charged, the commission of which they deny, without any evidence ever having been proffered against them. Even more bizarre, federal criminal sentences may today be based on conduct of which an offender has been formally acquitted."
So now prosecutors will allege all the offenses they intend to prove and plead them with specificity. A few things will be lost: Defendants will no longer be punished for testifying at their own trial by longer sentences if they are found guilty (because you couldn't indict him of that pre-trial). Then again, the prosecutor could always bring a separate, later charge of perjury if he wants to punish the Defendant.
In the short run the system will be disrupted as Defendants who were not indicted on all the charges the prosecution wants to punish them for or who were not indicted with specificity come to court and the judges have to decide how to deal with that. However, from the moment the prosecutors reacted to this decision its impact will be lessened greatly. Having met a few federal prosecutors, I am convinced that they reacted quickly and have already taken the necessary steps.
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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