I went back through the Blog and my personal memories trying to remember what the significant events of the past year have been in my criminal practice. Looking back it hasn't been the greatest year I've ever had; most of the memorable moments have been distressing. Still, here it is (in timeline order):
May 04 - The first thing that really sticks in my memory happened in May. My client was charged with malicious wounding but most of the damage had been done by his co-defendant. Client pushed the complaining witness, who fell forward and burnt his hands slightly on the edge of a bonfire. Co-defendant then jumped the complaining witness and beat him over the head with a beer bottle causing a number of cuts, lots of blood and a trip to the hospital. Both co-defendants were charged with malicious wounding (5-20 years).
Co-defendant's attorney asked for a jury trial. On the day of his trial my client was there for a continuance and the attorney for the co-defendant tried to talk me into taking my client to the jury with his. Realizing that a finding of guilt by the jury would have meant a sentence of five years minimum (juries cannot suspend time and judges rarely do after a jury trial) and that most of the really bad stuff would come in against the co-defendant, I decline. The next day I call the court on another matter and ask how co-defendant's trial turned out. The jury reduced it to a misdemeanor battery and sentenced him to a month (15 days to actually serve).
Later in the year my client had his charge reduced in his bench trial from malicious wounding to unlawful wounding but that was still a felony; he was sentenced to served three months. What seemed like a correct tactical decision led to the worse of the two offenders getting a lesser punishment.
August 04 - For the very first time I am quoted in a news article in the MSM. It's a comment about Blakely. Unfortunately, the article is no longer available but my explanation is here.
September 04 - A client gets 20+ years in federal court. The case has been a trainwreck from the beginning (up to and including the superceding indictment) and a few days after the trial a member of the family gives me an earful about how terrible a lawyer I am.
December 04 - After spending several months trying to get the prosecutor to drop the charge of releasing a noxious gas in public we end up arguing it at trial. For the life of me I still do not know why the prosecutor clung to this charge so tenaciously. It was about "Halt! Dog Repellent" and he even agreed to stipulate that it boiled at 212 Centigrade and released pungent fumes at 175 Fahrenheit. For goodness sake, the stuff sprays in a 12 foot stream. Anyway, by the end of the argument I had the judge solidly on my side.
Of course, it was a pyrrhic victory since Client was convicted of spraying this stuff at the officer (felony A&B; up to five years). The judge's comment at the end was, "Mr. Smith, what you did was despicable but it was not a violation of this statute." We are waiting for the sentencing hearing.
21 December 2004 - After practicing for almost five years I get my first ever letter from the Bar labeled "Personal and Confidential." I spend the next week digging through 2+ year old files and trying to remember (too many cases which all start to blur after a while). On 29 December 2004 I send my reply; now I wait.
And those are the highlights and lowpoints of the year behind me. Next year I'm going to win all my cases. Next year all my clients will be satisfied. Next year I will convince all the prosecutors to be forgiving rather than vengeful. Next year I will sway each and every single judge with my amazingly cogent arguments. Next year . . .
Not likely but that doesn't stop the feds from pooring all sorts of money into different areas. Some have used it to buy things to improve police and fire prostections. Others have bought gas masks. The question is whether the masks are readily available because - if the training I got in the Army was accurate - there will only be seconds for those in an effected area to react. If the masks are stored in a wharehouse or they are locked in the trunk of the police car (I've not seen officers with them strapped to their waists) they aren't going to help with anything.
I'm guest hosting over at C&F for the next couple months so that Fed84 can study for the bar. I expect to put a post in over there every couple days and just added my first major post about the law in Virginia as it applies to abductions. I doubt all my posts over there will be that long (I do have to work after all) but hopefully my contribution will allow him to study a little more.
As I think most of you may know C&F is on TypePad. Getting used to the interface has been interesting. Yesterday it ate the post I put up over there this evening because I back-clicked. Much like Blogger's interface it doesn't work well with my browser of choice, Opera. It semi-functioned when I tried Firefox. However, to get all the functions I had to use Explorer - just like I have to with Blogger. The only function I've seen so far which I really like is the ability to choose which posts can have comments. Other than that my decision to remain with Blogger is looking good to me so far.
I really don't think we are going to effect this administration's stand on this issue. To be sure, I see the reason that Presidential pardons should be used to balance out an unfair federal system where you can be sentenced for things you were found not guilty of, where long-standing doctrines like the "exculpatory no" have been abrogated so that even if the prosecution cannot get together enough evidence to accuse a defendant of the crime it was investigating it can comb through its records and if it finds an untruth charge the defendant with lying to a federal agent (see Martha Stewart), and where a person who is a lower level conspiree can get more time than a higher level conspiree because the lower level guy doesn't have information to sell in order to get less time. However, I don't see any administration wading into the criminal justice system and expending the time and political capital it would take to use the pardon power to correct these sort of systematic problems.
Given this, pardons strike me as always being entirely arbitrary. Can an arbitrary system ever be fair? No. Short of wholesale pardons there will always be those among the convicted who deserve a break. Political necessity will keep any president from giving too many pardons, whether they are deserved or not. The test is probably that the number of pardons will always be kept at a number low enough to fly below the media's radar (and thus avoiding the attention of the citizenry).
Whether it is arbitrary at 30+ pardons or 100+ doesn't really change anything. If it's not going to be used to fix the flaws in the system it's purely an exercise in emotions and/or politics. In other words, there will be "feel good" pardons (probably strategically announced around Christmas or Yom Kippur or Eid al-Adha) and pardons as an effect of being a member of the monied class. I would be very interested if anyone out there has a breakdown of how many of each of these two types there were in the Clinton administration and how many in Bush the Younger's administration.
I think Bush probably thinks he is on the right path. He shows contentment in his convictions (I'd say courage but you need serious opposition for courage) and seems to have an abiding trust-belief that systems work, whether they be legislative or judicial or administrative; how often have we seen him step up after a decision has been made by any organ of the government and oppose it? Therefore, it's not all that surprising that he's not disturbing judicial decisions made by others.
Would I like to see the current administration give out more pardons? Yes. The application of an arbitrary method to reach equity in some cases does justice for at least those few souls.
Still, the hair color change led me astray. She changed from a pretty blonde to a not so pretty Joan Jett imitator. I assume she is paying royalties to Ms. Jett for infringing on the look; now if she could only get a loan of the talent (of course I haven't heard Joan Jett in about 10 years - I am assuming there is still talent).
I spend Tuesday night and Wednesday morning trying to find the correct form for a habeas corpus ad subjiciendum for Virginia. I am all over the web and through all my books but all I can find are forms from other States and the federal system. Finally, I give up and go to the courthouse to check the law library.
I'm dressed in a dark blue-gray sweatshirt and an old pair of jeans which are about 5" too long and scrunch up down by the shoes (I had had no intention of going to the courthouse that day). As I come in the deputy razzes me, telling me that I "look like a defendant." I joke a little with him but think nothing of it and head to the library.
After another 45 minutes I am absolutely frustrated. I can find copies of the federal form and West Virginia's form but all I can find which is Virginia specific is a book which has a small section talking - in vague terms - about Virginia habeas. The librarian comes out and asks what I'm looking for. I tell her and she offers to help but I decline saying that I've pretty much looked everywhere from WestLaw to the internet to all the books I can find. After she goes back to her office I pull another book off the shelf and start looking through it.
At this point a lady who was sitting at the next table walks up: "You gotta keep looking. I know what it's like to be frustrated. I get frustrated when I can't find things too but I sit and think up another way and then I find stuff. I always look up things myself - you can't trust the shysters."
It has been suggested that the quiz I had taken and posted here was evil and tried to take advantage of my male nature by directing me to a 13 year old girl - Jamie Lynn (Spears). Here are the two side by side:
I don't think they're the same person but I might be wrong.
[BTW (and totally off topic) Ladies, if you want to absolutely mesmerize fools like me wear the contacts which make your eyes bright blue like this (or the green ones). I stare like an idiot and pretty much agree with anything the lady asks of me. (at least in the short term)]
Anyway, with Mister DA talking about statutory rape laws it reminded of an unusual event in my life:
It all began while I was studying for the Bar exam. I was self-studying (which I do not recommend) using MicroMash. For some reason the MBE section kept going back to statutory rape over and over. The section kept speaking about it in general terms - not Virginia specific. However, being in Bar study mode I freaked and looked up all the pertinent Virginia statutes.
So the Bar comes. On the evening of the last day a group of W&L law grads meet in Lexington and sit around in the local bar getting soused (as everyone must after the exam). At one point the conversation turns to kidding one of the guys about something to do with younger women. My brain contained the knowledge but my sense of propriety had been killed by the combination of relief that it was over and a healthy dose of beer. I blurt out, "Hey, don't worry about it man. It's only rape if she's under 13. 13-15 it's carnal knowledge and if you're charged all you have to do is marry the girl and the charge will go away."
The woman sitting at our table looked at me as if I'd grown a horn on my head: "How do you know that?" At this point the booze chose to shut down my ability to answer questions quickly and I sat there dumbfounded and kinda shrugged my shoulders. She moved off to another table with a strange look the whole way. Of course, it didn't even register with the guys at the table; they all acted as if I had just stated something that was common knowledge. Still, to this day I'm convinced that if I accomplished nothing else in law school, I managed to convince one fellow student that I was a perv. Not a goal when I got to the school but I think it was probably one of my more memorable accomplishments.
I walk into the front door of the local jail. The deputy looks up and hits the door button, the door buzzes open, and I walk into the front office of the jail. As I walk into the office the deputy is on the phone. Suddenly the deputy says, "OK", slams the phone down, grabs his keys, runs past me, lets himself out of the office by key, and runs full tilt out the front door of the jail. I'm left standing all by my lonesome in the front office of the jail for at least 10 minutes.
An older lady walks up to the office's front window and hits the button on the speaker box, trying to talk to me. She doesn't realize the button is just there as a buzzer to let someone know there's a person at the window and that I can't hear a word she's saying as long as she holds the button down because it is causing a constant, loud buzzing. I try to wave at her to get her to take her finger off the button but it doesn't work. Finally, after a minute or so of watching her lips move while this annoying buzzing continues, I walk up to the window and yell at her to take her finger off the button. As soon as she does that we can even hear each other without the intercom and I tell her I 'm waiting for the deputy just like she is.
A few minutes later a major in the sheriff's department comes up to the outside door. He can't get in because he doesn't have the key. So he motions to me and after a couple tries I get the button to open the door. The he asks me if I was helped before the deputy left. I tell him "no" and he looks at the computer and log books. I think he's trying to figure out exactly what he's supposed to do to get me in to my clients.
At that moment the deputy comes walking back in huffing and puffing. The major asks, "Was that him?" The deputy replies, "Yes." Then the major leaves and the deputy processes me in. He won't tell me what was going on and I didn't see anything in the news about any jailbreaks - I'm still clueless about what was happening.
Still, for about ten minutes yesterday I was the person who was sitting in the office which controls the front door of the jail. Me, all by my self - a Defense attorney in control of the front door of the jail.
1. Doesn't larceny in your jurisdiction require mens rea of intent to steal or the like?
"[B]ecause Code § 18.2-117 is a statutory, not a common law crime, proof of intent to permanently deprive is not an element necessary to sustain a conviction for its violation." Ketchum v. Commonwealth, 12 Va App 258, 262 (1991). This is the prevailing interpretation in Virginia and in order to get there the Virginia Court of Appeals had to ignore two (non-binding) cases from the 4th Federal Circuit and construe a 1985 case from its own court, Molash v. Commonwealth, 3 Va. App. 243 (1986), in a strained manner. Still, it's the law.
2. Doesn't the fact that failure to return within five days is only prima facie evidence of larceny make clear that failure to return is not conclusive evidence?
So I had thought. However, a realistic interpretation of these prima facie assumption statutes is that they shift the burden entirely to the Defendant to prove his innocence; I know appellate courts will offer some sophistic difference here and claim the burden still lies with the prosecutor but that's just not the reality in the courtroom. Still, I thought a I had an affirmative defense that would prove my client's actual innocence (impossibility of performance).
3. Doesn't your criminal code have a catch-all requirement of mens rea in it somewhere?
Criminal code? What be this criminal code?
Virginia's criminal law is a hodge-podge of basic crimes which are defined by common law and various statutory patches which have been put in place over the years by the Legislature. For instance this is the basic grand larceny statute:
Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.
Notice that it doesn't define larceny. There's a lot of this sort of thing in Virginia's statutes.
As to a statutory requirement of mens rea? If you can find one you would become an immensely popular person among Virginia's Defense bar. The Virginia Supreme Court has flatly stated that felony criminal statutes are strict liability statutes if they did not exist at common law and the Legislature included no intent in the statute. (see this post)
If you're not going to recognize what the season is, why send the card?
At least it's not as bad as the local TV ad I saw wherein the employees wished us all "a Happy Christmas, Hanukkah, Kwanza, or Ramadan - whichever holiday you celebrate." I about hit the ceiling. If you are going to be Uber-PC at least make sure that you know of what you speak.
First, Ramadan is a floating season and this year it wasn't in December; this year it started on 16 October and ended with Eid al-Fitr on 14 November. And technically it's not a holiday, it's a fast (although if you've seen the nightly parties in Middle Eastern countries during Ramadan you might wonder).
Second, if you are trying to hit major religious seasons such as Christmas and Ramadan you might want to substitute Yom Kippur for Hanukkah. Of course, it was on September 25 this year so it probably wouldn't fit.
Third, Kwanza. As best I can make it out Kwanza is a philosophical-societal-historical bonding holiday. As such it could fit with the others in a manner. But it's not a religious holiday so why mention it with them unless there is an underlying assertion that the three religious holidays mentioned are of faiths which exclude those who celebrate Kwanza? It is a disturbing undercurrent.
Yeah, I know, I shouldn't let these things worry at me but they do. I guess I am flawed. (in case you hadn't already noticed)
Now I can spend the next six months trying to figure it out. A shame it wasn't a Tanka so I could get a couple of lines analysis on the first three. Not that they ever really helped this guy's poor moribund western mind. Strange, I can wrap my mind around things like Sufi poetry but the Japanese always stump me . . .
[addendum] My brother comments:
Think about it. You've got a stinging sharp wit, and you expose only too much with ruthless efficiency - thus the first two lines. The third line just sums it up in a kawai (cute) way. I think you got pegged! ^_^
Remember when "binge drinking" actually meant binge drinking? You know, back before the neo-prohibs, insurance companies, colleges, &cetera began to cheat in their definitions in order to make drinking 4-5 beers sound like a bad thing.
Pretend you are a prosecutor: What crime do you charge? Pretend you are a Defense attorney: What defense to that crime?
(I expect plenty of comments from law students here. You all should be able to do this in your sleep having just finished finals.)
A husband and wife are traveling by car from Key West to Boston. After almost twenty-four hours on the road, they're too tired to continue, and they decide to stop for a rest. They stop at a nice hotel and take a room, but they only plan to sleep for four hours and then get back on the road.
When they check out four hours later, the desk clerk hands them a bill for $350.
The man explodes and demands to know why the charge is so high. He tells the clerk although it's a nice hotel, the rooms certainly aren't worth $350.
When the clerk tells him $350 is the standard rate, the man insists on speaking to the Manager.
The Manager appears, listens to the man, and then explains that the hotel has an Olympic-sized pool and a huge conference center that were available for the husband and wife to use.
"But we didn't use them," the man complains.
"Well, they are here, and you could have," explains the Manager. He goes on to explain they could have taken in one of the shows for which the hotel is famous. "The best entertainers from New York, Hollywood, and Las Vegas perform here," the Manager declares.
"But we didn't go to any of those shows," complains the man again.
"Well, we have them, and you could have," the Manager replies.
No matter what facility the Manager mentions, the man replies, "But we didn't use it!"
The Manager remains unmoved, and eventually the man gives up and agrees to pay. He writes a check and gives it to the Manager.
The Manager is surprised when he looks at the check. "But sir," he says, "this check is only made out for $50."
"That's right," says the man. "I charged you $300 for sleeping with my wife."
"But I didn't!" exclaims the Manager.
"Well," the man replies, "she was here, and you could have."
2) Okay, if you're gay and you choose to come to the law school which is probably the most conservative in the top 25, at a University which basically shares a campus with the Virginia Military Institute, a University named after General Lee, a University in a small rural Southern town, a law school which always has a number of military veterans enrolled, and then you start posting fliers around the law school attacking the military while troops are in the field risking their lives - do you expect your quality of life to be great? This guy files suit in Virginia and he will be crushed so fast . . .
Look, there was an openly gay male at W&L Law while I was there. We all knew it and I never saw him get the kind of treatment described in the article. I suspect there was a lot more provocation than the article presents.
On the 7th of October my client rented an automobile. The automobile was to be returned on the 9th of October at 12:30 p.m.
Client was arrested on the morning of the 9th. The capias was actually served on him at 9:05 a.m. which means he had already been in custody for some time prior to that. Obviously, the car didn't get returned and Client was charged under this statute:
18.2-117: If any person comes into the possession as bailee of any animal, aircraft, vehicle, boat or vessel, and fail to return the same to the bailor, in accordance with the bailment agreement, he shall be deemed guilty of larceny thereof and receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The failure to return to the bailor such animal, aircraft, vehicle, boat or vessel, within five days from the time the bailee has agreed in writing to return the same shall be prima facie evidence of larceny by such bailee of such animal, aircraft, vehicle, boat or vessel.
The prosecutor had the owner of the rental agency come up and testify to the fact that the car was rented and not returned. I introduce the capias paperwork showing the 9:05 a.m. arrest. Client has been in jail on the other charge since the capias was served.
I stand up and argue (1) that it was impossible for my client to return the car and (2) because my client was arrested prior to the time of return it is impossible to show an intent not to return the car.
The judge and I then engage in a discussion over whether or not the statute requires specific intent. The judge asserts that the fact the words "willfully or wantonly refuse to return" are not included in the statute the prosecutor doesn't have to show specific intent. I counter by saying there has been no showing of intent at all, not even the most generalized intent to do something bad. The judge is not with me so I move on to the other argument.
I point out it is impossible for my client to have returned the vehicle. The prosecutor gets up and quotes a case which states that while legal impossibility is a defense, factual impossibility is not. The judge agrees that this case is not a legal impossibility but a factual one. I point out to the judge that the case the prosecutor is citing is a conspiracy case which basically says if the police intervene to keep the conspiracy from reaching fruition it does not mean someone is not guilty of conspiracy and that the case is not appropriately applied.
The judge listens politely and then finds my client guilty.
So, I'm leaving my office yesterday to go to court. I close the office door and turn to go down the stairs. When I'm half-way down the psychiatrist who has the office at the bottom of the stairs steps out of her office and stands at the bottom of the stairs, facing me.
"Do you represent prostitutes?"
"Ummmm . . . no."
"Well these two [pause] women came by your office a couple days ago looking for you and they were dressed . . . [look of slight horror]"
"That was my client's mother and girlfriend."
"Really? Because they were dressed very provocatively. One of them had nothing on from here to here." [motioning from about where low-cut jeans would end to where a high halter top would start]
"Yes, that's them. Hopefully they won't dress like that for court."
"You're sure they weren't prostitutes?"
"Yes, I've represented that kind of client before and generally she'll be broke and won't be able to get hold of a car to come here."
The psychiatrist looks none too pleased with that answer and gives me a strange look before heading up the stairs to parts unknown.
You know, I'm not a member of the Cult of Scalia but I'm usually impressed by his opinions when I read them. Not this time.
Devenpeck v. Alford is a badly reasoned expansion of Whren's doctrine that courts will look the other way in clear violations of the constitutional guarantee against searches and seizures as long as an officer has reasonable articulable suspicion that there has been some vanishingly minor infringement upon some law.
The 9th Circuit tried to hold the officers in a case to their stated reason for arresting someone:
In this case, the Court of Appeals held that the probable-cause inquiry is further confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be "closely related" to the offense that the officer invoked.
Altogether, a quite logical position. However, it endangers Whren because it could mean that an officer making a stop because the air freshener dangling from the rearview mirror would be held to the parameters of the reason given for the stop. This would completely void the reason for allowing Whren stops because it could keep the officer from expanding the parameters into zones which would otherwise be unconstitutional without cover from Whren. OMG!!!
Cleaving hard to this mighty cornerstone of constitutional interpretation
[the] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause
the Court goes on to explain:
[The Circuit Court's] rule makes the lawfulness of an arrest turn upon the motivation of the arresting officer--eliminating, as validating probable cause, facts that played no part in the officer's expressed subjective reason for making the arrest, and offenses that are not "closely related" to that subjective reason.
Because, as we all know, it would be terrible for police to arrest people on the basis of crimes the officers actually claim have been committed.
The parade of horribles is actually kind of humorous. (1) Under the Circuit Court's standard the constitutionality of each arrest will be based upon the facts of that case. (2) We must rescue rookie officers from the humongous errors they will make in charging suspects (gotta be humongous errors because minor errors would be under the "closely related" part of the standard). (3) Officers will stop telling people what they are being arrested for. (4) Officers will start telling people they are being arrested for everything under the sun. I'm not even going to comment about how silly most of that is.
The new words which are carved in stone and descend from the mount are:
Subjective intent of the arresting officer, however it is determined, is simply no basis for invalidating an arrest.
So now we've moved beyond the Whren doctrine that a ridiculously minor infraction can be used to stop a car in order to shake down its occupants. Now we have a doctrine which states that even if the officer arrests someone on murder and rape charges, for which he doesn't even have reasonable articulable suspicion, the arrest is fine as long as a tail light was out on the car.
Hmmm . . . There's a statement which needs explaining. Am I actually saying that if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep (to remind me when to change oil) and could get a citation for "obstruction of view." Yes, I am.
First, here's the statute I would be violating (in pertinent part):
§ 46.2-1052 (A) Except as otherwise provided in this article or permitted by federal law, it shall be unlawful for any person to operate any motor vehicle on a highway with any sign, poster, colored or tinted film, sun-shading material, or other colored material on the windshield, front or rear side windows, or rear windows of such motor vehicle.
Ah! You say: that's merely a citation!
Nope. In Virginia we don't have a separate classification for "citations." "'Citation' means any summons, ticket, or other official document issued by a police officer for a traffic violation containing an order which requires the motorist to respond." (§ 46.2-944) The default punishment is a class 4 misdemeanor carrying no jail and a maximum $250 fine. (§ 46.2-113).
Well, if it carries no jail time surely I can't get arrested for it? Of course I can. In fact, the statute telling officers how to deal with my violation seems to refer to me as being under arrest.
§ 46.2-936: Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall, except as otherwise provided in § 46.2-940, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Such time shall be at least five days after such arrest unless the person arrested demands an earlier hearing.
But even if my reading of that statute is a little strained, worry not, having committed a misdemeanor in front of the officer (driving with the inability to see around that massive sticker) I am subject to arrest:
§ 19.2-81: [O]fficers may arrest, without a warrant, any person who commits any crime in the presence of the officer.
And going even further, let's assume that my analysis of that section is incorrect - that "crime" is interpreted in a restrictive manner limited to such offenses as existed at common law (not a realistic way to expect it to be interpreted).
Well, then the courts can always fall back on good, old Atwater. Under Atwater it isn't unconstitutional for me to be arrested for a very minor violation which carries no jail sentence. Without that constitutional burden I have no protection against violations of the law. There are no protections for citizens under the Virginia constitution. To say that in a more technically accurate manner:
Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution. 21 Va.App. 729
And you can bet that if the constitution of Virginia goes absolutely not one jot further than what is forced upon our courts by the federal constitution nothing so minor as a law would get in the way. My rights end at the edge of the federal constitution; Atwater renders the statutory arrest limitations dead letter law.
So, you see, if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep.
Scott Peterson was sentenced to be killed by the State of California. The crowd outside did not cheer or react badly (at least not from Court TV's camera). Most seemed more concerned with waving at the camera as it panned past. 3-4 guys at one place were slapping hands but they were surrounded by cameras and it looked like they were doing it to get attention focused upon themselves.
Okay, it was back in the 90's. My unit 519th Military Intelligence Battalion (Tactical Exploitation, Airborne) was technically "Airborne." However, large numbers of soldiers in the unit (including yours truly) were "Legs." It wasn't all that important in reality because most of our unit was never, ever going to jump into combat (this was before F company joined the battalion). It had little to do with our individual company missions and for a long time we trained for our missions so we could do them well.
Then one day we got a new LTC. He was a disaster. Now, I don't know if he didn't understand our mission or if he was trying to use the unit as a stepping stone in his career. All I know is that all of the sudden we started doing things which could be tracked on paper and shown to superiors instead of a number of mission specific things which didn't really show and wouldn't matter unless someday we actually had to perform the mission in a combat zone. He also cared a lot about appearances.
So one day we have a battalion inspection. That was pretty typical but then he had us all come into the area theater. He stood up on the stage and announced that he was considering having everyone in the battalion wear maroon berets whether they were Airborne or not (at the time Airborne wore berets while Legs wore field caps). Then he asked for comments. The first person called on was a Sergeant First Class who worked in the Headquarters building and he laid down the party line: "That's a great idea, sir. I think it will build unit cohesiveness and blah, blah blah . . ."
Every soldier that commented from that point until they stopped taking comments (about 30 minutes later) told the battalion commander how bad his idea was and laid out reasons. It was very, very clear that almost all the soldiers in the unit thought this was a really bad idea. And the commander did not have any satisfactory answers; it was obvious that he wanted us all wearing berets so the unit would look more Airborne and make him look better. Of course, nothing we said was listened to - a week later the message came down that we were all to start wearing berets and we did.
Which is a long-winded way to say that it was my experience that in today's professional - but rarely career Army - soldiers will do as ordered (complete their mission) but are not afraid to tell their superiors what they think. They are citizen-soldiers, not soldier-citizens, and don't fear the prospect of harming their careers. This is doubly true when you are talking about Guards and Reserves.
Of course, this all leads to the burning question: WHY???
Why would Rumsfeld open himself up so he could get dinged like that? While I generally disagree with Ogre's comment about this post from Gleeful Extremist, he is absolutely right in his last sentence conclusion: "The military is NOT a Democracy." Those senior in the chain of command should show up, inspect, hand out medals, give the rousing speech, and leave. Town Hall formats are things tailored for a democratic process; they are meant to have a politician answer questions from citizens - you know, the people he's supposed to answer to. Senior members of the chain of command may answer to the President, Congress, the citizenry, &cetera but they cannot and must not answer to soldiers. Rumsfeld should have made his speech and walked away.
Although it is possible to ‘crack’ a combination lock, its rarely a method used by criminals, or even by safe manufacturers called to open a safe whose combination has been lost. Many safes have time locks, so even if the combination is cracked, the safe will not open outside office hours. All post offices have time locks on their safes. Many safes also have a simple microswitch inside the combination lock connected to the alarm system to trigger it whenever the dial is turned. For these reasons, most attempts to break into safes by-pass the lock altogether. One method is to ‘drill’ the door. With engineering drawings of the bolt mechanism, it is possible to find a point on the safe door to drill through. A screwdriver can then be pushed through and manipulated to release the bolt mechanism – by-passing the combination lock altogether. . . . . A popular alternative to ‘drilling’ safes is to use explosives. Gunpowder was used with some success in 19th century America, simply pouring it in through the keyhole. The shock burst the front plate of the door open, making the bolt mechanism accessible.
It goes on describing all sorts of techniques and the counters used against them.
7) Okay, I don't know if I'm even allowed to comment on this as a member of the great, unwashed Goyim (Goyeem?). I'm definitely pretty sure I'm not allowed to tell ya'll that I laughed so hard I almost fell out of my seat. Something this hilarious could only come from Orin.
You don't have court reporters at PC hearings!? How the heck [is a personal tape recording] an official record? Doesn't the court keep a verbatim record of its own? I mean, we've had a nasty infestation of video courts in the last few years, but at the very least there is a certified video clerk logging times and names and exhibits and such like, and a honest to God certified court reporter of one sort or another has to prepare the record. How can it be a court of record if no one is keeping a record?
The inferior trial court in Virginia is not a court of record. There's never a court reporter unless someone pays for it. As well, the inferior court does not approve the charges for trial; it only sends the charges to the grand jury and the grand jury then decides whether or not the case will go to trial (along with all the other ham sandwiches).
In fact, a prosecutor does not have to submit to the findings of the judge in the inferior court. If the inferior court judge finds that probable cause is lacking and dismisses the prosecutor can then take the case directly to the grand jury and indict on any charge he wishes. Even if the judge found probable cause the prosecutor can indict the Defendant on new and / or different charges in front of the grand jury. The prosecutor can even skip the inferior courts entirely, take a case to the grand jury to get the charges, and have no hearings outside the superior trial court.
Why do we even have preliminary hearings then? Well, there's this little statute:
So, in theory all felonies should have prelims before indictment. I'm not sure how this is gotten around having never had a reason to challenge it and thus no reason to do the research (I'll happily post the answer if someone emails it in).
Beyond the theoretical reasons there are also practical, real-world reasons. If a person is arrested and delivered to the jail prior to an indictment (generally on a warrant sworn out by an officer) the preliminary hearing is a necessary part of keeping him in jail. He is held on the warrant until the prelim date and, assuming the charge is approved by the inferior trial judge, he is then held until trial in the superior court. Without this process no one could be held until an actual indictment came down and the grand jury only sits once every month or two (sometimes three). The prosecution and police generally aren't willing to let a murderer roam the street for a month while they wait for the indictment.
The Defense wants prelims to take place because they are where we get a lot of our information about the case. Required discovery in Virginia is minimal. Trial by ambush is apparently the way our Legislature and Supreme Court think we can get the best results. While many prosecution offices will turn over more than that required, some prosecutors play this to the hilt. So the Defense attorney wants that prelim. Everyone knows that the prelim is basically discovery for the Defense. Our appellate courts deny it but most trial judges realize what the situation is and give us a good deal of latitude in asking pertinent questions.
Because the inferior court has no record, a long standing practice has been for Defense attorneys to use tape recorders in these proceedings because of the lack of a court reporter. It's not efficient. In fact, it's quite a pain to work with but the courts aren't going to approve a reporter for anything short of major cases. And even the use of tapes has been called into question by the Yarborough case. In this unpublished opinion the appellate court allowed a superior court to shut down an attorney who was using a transcript of his tape and had the tape available at court. The appellate court did not reach the merits; it denied the appeal on procedural grounds. Still, it is enough to make me wonder about the viability of tapes. And the reason I wanted a court reporter when my case became extremely serious.
Lately All Things Have Been Quiet on the Virginia Front. There have been no great, hard fought battles wherein complex legal matters are at stake.
However, I knew they were coming. I knew that as of this Thursday I would be arguing a case involving the chemical composition of something I claim is a liquid and the prosecutor swears is a gas. I knew that next week I had an argument as to whether my client could have refused to return a rental car while he was in jail. I knew that I also have a 4th Amendment argument for next week. Other arguments loom in the future. And then, from out of left field . . .
I come into court today with a client charged with malicious wounding. From conversations I've had with the client and the Detective when I first got the case, I'm thinking there is a good chance this might go away completely because of self defense; perhaps the prosecutor will offer a lesser offense such as A&B or unlawful wounding. So I walk up to talk to the prosecutor and she tells me that the charge is being changed from malicious wounding to aggravated malicious wounding because some nerves were damaged.
Holy Crud!!! My client's exposure has changed from 5-20 years (with a realistic expectation after suspended time of setencing guidelines between 2 - 6 years) to 20 years to life (with a realistic expectation after suspended time of sentencing guidelines between 5 - 11 years). A case which, at the start of the day, looked fairly typical has changed into a potential disaster in the making.
Waiting for the preliminary hearing I come to the conclusion that I need a court reporter here for a case with a potential life sentence. In most cases a tape recorder would be used but the Virginia Court of Appeals has called that practice into doubt in Yarborough. So I go ask a couple questions of a lawyer who has been practicing much longer than I have and decide I must ask for a continuance so that I can petition the circuit court for a court reporter (the circuit court approves the use of court reporters for indigent Defendants in inferior courts).
I walk in and tell the clerk I need to make a motion in this case. A couple minutes later the clerk calls it. About 6 witnesses walk up on the prosecution's side. This is not good because the judge will not want to continue a case which will inconvenience that many civilians.
"Your honor, the Commonwealth attorney has been kind enough to tell me that she is going to amend my client's charge from malicious wounding to aggravated malicious wounding and I have to ask for a continuance to get a court reporter."
The prosecutor, obviously not happy, comments on the fact that I had plenty of time to ask for a court reporter prior to this date and even offers to lend me a tape player.
"Your honor, the maximum penalty has gone from 20 years to life. I feel that I need a court reporter here."
The prosecutor then points out that she has not amended the charge and we could have the preliminary on the malicious wounding. She would just wait and direct indict later. I can't remember saying anything after that (I'm sure I said something); I just remember standing there and looking at the judge.
The judge looks down with a quixotic look. I can never get a full read on this man. He looks a little like he's torn; he looks a little like he's surprised I am doing this (I'm not certain this judge thinks I'm very competent); he looks a little resigned; he maybe even looks a little confused; however, he doesn't look upset.
"He already knows the charge is coming. Out of an abundance of caution, I'm going to continue the case. Mr. Lammers, you know that you have to arrange this through the circuit court and have the court reporter here on that day?"
I assure him I do. Then comes something I didn't expect.
The judge says to my client: "You've got a good attorney and it looks like he's digging in and fighting for you. You make sure you stay in contact with him."
So at the end of the day I have a very serious case, a prosecutor with whom I have probably burnt some bridges, and a judge whom I still cannot figure out completely. We'll all have to come back in January and see what happens.
1) What happens when you tell a PD that she will be in court all day because you are making sure her traffic ticket is called last? R E V E N G E
2) W&M law students are teaching those in jail. Great, now the jail house lawyers will have more ammo. The law student from W&M told me . . . (of course, the jail house lawyer won't fess up that they were discussing "To Kill a Mockingbird" at the time)
"In the Miller-El case, appellate lawyers and legal scholars are buzzing over what they say is the insolence of the Fifth Circuit.
In an 8-to-1 decision last year, the Supreme Court instructed the appeals court to rethink its "dismissive and strained interpretation" of the proof in the case, and to consider more seriously the substantial evidence suggesting that prosecutors had systematically excluded blacks from Mr. Miller-El's jury. Prosecutors used peremptory strikes to eliminate 10 out of 11 eligible black jurors, and they twice used a local procedure called a jury shuffle to move blacks lower on the list of potential jurors, the decision said. The jury ultimately selected, which had one black member, convicted Mr. Miller-El, a black man who is now 53, of killing a clerk at a Holiday Inn in Dallas in 1985.
Instead of considering much of the evidence recited by the Supreme Court majority, the appeals court engaged in something akin to plagiarism. In February, it again rejected Mr. Miller-El's claims, in a decision that reproduced, virtually verbatim and without attribution, several paragraphs from the sole dissenting opinion in last year's Supreme Court decision, written by Justice Clarence Thomas. . . . . . 'The Worst Court in Texas' was the ignominious verdict on the cover of the November issue of Texas Monthly, the state's glossy bible of style and politics. The target: the Texas Court of Criminal Appeals. . . . . . In another episode widely perceived as an embarrassment, Roy Criner, a prison inmate serving 99 years for the rape and murder of a 16-year-old girl that he insisted he had never committed, successfully petitioned for a DNA test not available during his trial. The test determined that the semen in the victim was not his. A second test produced the same result.
The trial court asked the criminal appeals court to order a new trial, but with Judge Keller prominently in the majority, it voted 6-3 to let the conviction stand. Gov. George W. Bush, then running for the White House, granted Mr. Criner clemency. . . . . . Last December [the 5th Circuit] considered the last-minute appeal of Billy Frank Vickers, scheduled to die for the killing of a grocer in 1993. With the inmate already given his last meal, the judges deliberated until 9 p.m. and announced they were leaving, with no decision. Bewildered state prison officials allowed the death warrant to expire, granting Mr. Vickers a delay. He was executed six weeks later. . . . . . In October, a Houston federal judge granted a last-minute stay to Dominique Green, but the state appealed. The Fifth Circuit then gave defense lawyers less than half an hour to file their response, Professor Dow said. A rushed brief was e-mailed to the court and turned down. The Supreme Court also rejected a stay, and Mr. Green was executed that night."
7) A strange case and a lawyer Skelly thinks is a kook (read the facts of the case he links to). Personally, I'm a little suspicious of the judge as well. How many judges would refuse motions to dismiss with prejudice from both the Defense and the prosecution?
8) I've read and been told in more than one CLE that the sentencing situation is turning judges and prosecutors against one another. Mostly, I've not given it too much credence and chalked it up as wishful thinking. And yet . . .
Can you offer any suggestions for prison mail? In particular, I got one recently from a guy in VA, says he is innocent, had a lousy trial atty and now needs help on appeal.
I cannot help, but I'd like to at least point him to a helpful/useful source.
Everyone I know gets these letters from time to time. They are sad or angry or desperate. Often, the inmate is unhappy with the finding of facts and will lay the facts out "as they actually happened." Other times he is upset because he cannot understand why his lawyer would not put his Aunt on the stand to testify that she heard Joanne tell Mary that he didn't do it. Or he is certain that if his attorney had just located "Slim" his alibi would have stood up. The universal characteristic in each of them is that the assertion that the defense attorney screwed up or just didn't try.
The temptation here is to blow all of these off as bogus, the stories concocted by men with too much time on their hands who have had years to try to come up with the perfect story with which they now think they could win their cases. And I'm sure many, if not most, of them are. But how can you know? You cannot. What then can you do?
First look to see where the inmate is being held. If it's a jail you must act quickly. He may still be within the time frame for the direct appeal needed to preserve everything else. Call someone in that jurisdiction. If you don't know anyone try the VACDL or even call the local clerks office to get a name. Somebody needs to get the notice of appeal in place and the judge will appoint counsel for an appeal. A local attorney should be able to accomplish all of that.
If the inmate is in a prison the odds are that it is too late to do much. At least in my region, DOC doesn't pick up inmates until it is too late for a direct appeal or the appeals are exhausted. If there was no direct appeal then there is no habeus. Assuming a direct appeal, from its end the inmate has 1 year to file a habeus. Most of the prison letters I get are from men who have already sat out five years of their sentences and decided that they shouldn't sit out the next 10 because they are innocent. True or not it's simply too late.
However, assuming that the inmate wrote you as soon as his direct appeal was finished he does have the habeus available. The problem you will run into here is that Virginia will not pay to appoint a lawyer for a habeus. Therefore, many lawyers cannot take them; researching the issues, ordering the transcripts, making trips across the Commonwealth to the prison all build up to make the cost prohibitive for guys like me to do this sort of thing pro bono publico. Heck, even if Virginia did make court appointments for habeuses the cost of doing this sort of case would surely heavily outweigh the pay one would receive under Virginia's fee caps. Yet other lawyers will not take habeuses because they are political hot potatoes. Many (probably most) habeuses are based upon an ineffective assistance of counsel claim and that's just not a way to make yourself popular with the local bar.
If the inmate is not within the time period available for a habeus his last resort is a Writ of Actual Innocence (assuming he pled not guilty). However, I would be hesitant to write and tell an inmate this because "[o]nly one such writ based upon such conviction may be filed by a petitioner." If he, or the jailhouse lawyer, files one of these before actual proof of innocence has been developed or files it in the wrong manner he loses it forever. 4 years later when irrefutable evidence comes to light proving his innocence he is up the creek without a paddle. Virginia appellate courts are nothing if not consistent in their strict adherence to proper procedure.
Recommendation: For both of the last two my recommendation is to send a copy of this questionnaire to the inmate with a stamped envelope that is addressed to
Make sure that you include that envelope so he doesn't mail it back to you.
I'd also send a letter which clearly says you cannot represent him but that this sort of problem is what The Innocence Project specializes in and that they are the people he should be writing to.
It's the best solution I've been able to come up with. I realize the Innocence Project has limited resources but they've got to be greater than mine. As well, I'm confident that they have a greater ability to separate the wheat from the chaff. Whereas my experiential bias might lead me to be more cynical about some of the claims in these letters, the people associated with the Innocence Project would, I presume, have more of a bias in favor of these folks and choose to alot resources to help those whom I might not.
Only one trial today. It's a petit larceny of a $3.99 sandwich from a grocery store. The officer tells me that he saw my client and his girlfriend both carry sandwiches into the bathroom and then come out without sandwiches but with bulges under their clothes. Client goes up and pleads guilty and has no larceneys or felonies. I ask for advisement with an eye toward dismissal six months down the road after some community service and shoplifting classes. However, the judge has other ideas. He decides that my client should spend one night in jail, do 20 hours community service, and not have the charge dismissed from his record. It's a little harsh for a first offender. Client decides to appeal the decision so I have to go get a date set for circuit court and ask the judge to let his bond carry over for the appeal (he does).
The afternoon is made fun by a visit to Beaumont Juvenile Detention Center. Beaumont is where Virginia wharehouses the kids it has given up on. They are usually being held until they are 21. There are a lot of fights at Beaumont between the guards, teachers, &cetera and the "cadets." Prior to 18 years of age this leads to some punishment at the Detention Center. After the 18th birthday it leads to felony charges.
I have two clients to visit. First, they take me down to a gymnasium and lock me in without even the usual intercom to call the guard station. The room is depressing. The floor is a smooth and a dark concrete gray. It's maybe 2/3 the size of a basketball court. There's a very worn shuffleboard layout on it (though not in a way that would suggest the game is being played). There's a cheap, wooden basketball backboard and hoop to one side; the hoop has a net which only extends about 2" and the backboard has the square hand painted on it about a foot too high and off center. On one wall there are two pull up bars. The lighting is dark and chairs are scattered around the room in a manner which suggests that this is a storage room. All-in-all, it's a depressing. I sit there for over 1/2 a hour waiting for my client and finally a guard opens up the door and asks who I'm waiting for. When I tell him he gets the kid in about a minute. They'd simply forgotten I was there.
They bring the kid from class and don't have him cuffed or anything. The guards are being friendly with him as he comes down the hall. All of these are good signs at an institution where they don't trust their wards as far as they can heave them. I have my meeting with the kid and he heads back to class.
Then the guard informs me that they won't be bring Smith to me because he is in BM. BM? I instantly reject the meaning for those initials which comes to my mind (BM was the polite way at the house I grew up in to say "I gotta take a [number 2]"). They walk me over to the main guard control room and the guard stationed there tells me they have to get a roving guard to take me to the BM to meet my client. Seeing the confused look on my face the guard explains: "Behavioral Management." Oh, great. A guard comes to take me down there. As we're walking down the hall I ask if Smith had gotten into another fight. The answer: "Smith has been in a fight every day since he's been here." Oh great.
When we get to Behavioral Management the guard gets another guard and they go in. I'm left in the antechamber between the hallway and the general area off which each of the solitary confinement rooms is located. It's a small safety room with locks on both the door to the hallway and the door to the general area neither door to be opened when the other is (for those of you who are science fiction fans, picture an airlock). The guards grab a full set of shackles and head down to my client's cell. My client doesn't give them a whole lot of gaff (only complaining that the cuffs are too tight). However, the kid in the cell next to him is threatening to beat the crud out of the guard the whole time. He keeps trying to bait the guard into opening the door with threats of how he's gonna beat the guard down if he's man enough to open the door. He also makes numerous promises about what he's gonna do to the guard when he gets out of BM. For his part , the guard is giving it right back - promising that he will beat the kid down and then make sure charges are pressed against him. Finally, they finish preparing my client and bring him so the soap opera stops. My client is in with leg chains, a chain around his waist, and his hands chained to the waist chain. Then they leave and I meet with my client. After a robust and interesting meeting they take my client back and I leave Beaumont.
I have 6 felony hearings scheduled in Circuit Court. I show up about 8:15 in order to give any of my clients who have not been to see me an opportunity to come talk to me. One client shows up about 10 minutes before court is supposed to start but he's someone I had met with earlier.
Court starts at about 9:15 and I'm first up. The first case called is an embezzlement case. Client walks in just as the judge calls the case, drops her coat, and hustles up to the defense table. Luckily, Client has spoken to me earlier so there is no difficulty. She made two confessions; needless to say, it is a guilty plea. Other than arriving at the last second her plea and questioning by the judge goes well and she is left on bond until the sentencing hearing.
The next case is a client charged with possession of marijuana with intent to distribute and possession of cocaine with intent to distribute. If the client goes to trial the judge in this jurisdiction the judge will require a jury trial - a not too subtle way of forcing a guilty plea because of a mandatory sentence the jury would have to impose the judge would not. Anyway, the prosecutor agrees with me that Client is only guilty of possession of cocaine, not distribution (when deputies raided his girlfriend's house they saw him throw it out the window). Girlfriend, with whom Client was living, was clearly growing and dealing marijuana out of the house and - while perhaps tenuous - I think that the prosecutor can make a case that my client was a principal in the second degree. Before the clerk reads the charge I explain to the judge that the prosecutor and I agree there is only possession of cocaine and therefore Client will plead not guilty to possession with intent but guilty of possession. The prosecutor backs me up and the judge, looking none too happy, states, "Well, Mr. Lammers, I'll hear the evidence and decide if that's appropriate." So Client pleads to possession of marijuana with intent and "not guilty to possession with intent but guilty of possession" of cocaine. The judge questions my client and when it becomes clear that his girlfriend was the one who actually sold the marijuana the judge asks Client if I talked to him about being a principal. Client gives a look to the judge which clearly purveys, "What the heck are you talking about?" So I stand up and tell the judge that we didn't talk about it in those terms. "What words did you use, Mr. Lammers?" "Sir, we talked about assisting and benefiting from an act." The judge doesn't look too happy but he accepts it. Client was allowed to remain on bond until his sentencing hearing.
The next case is continued because my client has gotten himself thrown in jail at the other end of the Commonwealth and the deputies didn't get notice in time to go get him.
Then the judge wants to call my two sentencing hearings. I look around the courtroom and see that one of my sentencing clients has just shown up. I have to ask the judge for a break because I haven't been able to go over the sentencing guidelines with my client yet. So the judge gives me "5 minutes" and I grab my client and head outside. We sit on a porch outside the courthouse and talk; in the meantime he calls the two cases on the docket that aren't mine. After I finish talking to the client outside I run into the courthouse to check to see if my two clients from Beaumont are here yet and talk to them for a couple seconds each. Finishing all that I run back outside1 and just as I get to the door of the circuit court the deputy steps outside looking for me.
I go in and the client whom I have just talked to about his sentencing guidelines is up. His guideline recommendation is 3-6 months for unlawful wounding. I ask the judge to take judicial notice that the codefendant, who was responsible for the vast majority of the injuries, was found guilty of misdemeanor battery by a jury and sentenced to only a month. The judge allows as how he'll take notice but it won't bind him in this case. The prosecutor gets up and starts arguing the original malicious wounding charge again and asking for a stiff punishment. I point that out and that the judge had rejected that argument in reducing the charge to unlawful wounding. I point to the fact that the codefendant got his charge reduced to a misdemeanor and only got a month in jail while my client is going to be weighed down with a felony conviction for the rest of his life. For a second there I allow myself the conceit that I may have talked the judge into giving my guy straight probation. Then the judge asks my client if he has anything to say before he is sentenced. Client: "I wish it hadn't happened. I wish I hadn't been there." You could just see the judge's face harden. He lectures my client about not accepting responsibility and sentences him to three months.
Next is the BM kid from Beaumont; the kid was found guilty of A&B of a juvenile detention employee with intent to injure and his sentencing guidelines recommend 1 year 9 months to 5 years (midpoint 3 years 5 months). The prosecutor points to the abduction charge which got the kid in Beaumont to begin with, the "over 100" infractions reported in the presentence report, and the fact that the judge found him guilty of attacking a teacher at the detention center; he makes it clear that he thinks that my client should go to prison for a long time. I get up and point out that other than the offense which put him in Beaumont my client's record isn't all that bad. I then state to the judge that while Beaumont may be bad it's nothing like an adult prison and that a taste of real prison might be appropriate but the amount of time recommend is too much. I finish by repeating the judge's own words from the trial - "if this had happened at a regular school it would only be an A&B" - and then ask him to give my kid a year in accordance with that statement. Judge turns to my client and sentences him to 4 years.
This leaves my final Beaumont kid. However, the guard who he's alleged to have hit isn't here today so the judge continues that one over my objection.
All of it is done by about 10:15. I run to talk to the two kids who've been sentenced today. I really, really want to appeal both the cases because there is serious error in each case. The kid who got 4 months is polite but decides not to appeal. The Beaumont BM kid is sitting in a room with three juvenile detention guards and won't even look at me: "I don't want to talk to you, you fat white cracker." One of the guards turns to me with a look half way between laughing and worry tells me not to pay attention to him "he's always like that." I ask him if he wants to appeal and he tells me (and everyone else in the room) in no uncertain terms that he does not.
And that ends my day in circuit court.
---------- ---------- ---------- ---------- 1 When the county built its court complex it built it onto the back of the existing courthouse. When court's not in session lawyers can use the entrance next to the bench but when court is running you must go in and out the front doors which lead to the outside.
Friday through Sunday are all days spent prepping for and going to Cincinnatti to watch the Bengals lose to the Steelers. Back before the season began a buddy and I (the only two Bengals fans in the greater Richmond area) chose the game we thought the Bengals had a good chance of winning. So - naturally - the Steelers turn into the terror of the NFL and the Bengals win the two games before the one we go to and the game after is the second highest scoring game in the history of football; they lose the one I go to see. Still, it was a good game. If the Bengals can get Palmer to stop throwing interceptions they are going to turn into a good team.
My main event of Monday is a visit to the juvenile prosecutor. I run by the juvenile and domestic courthouse about 1 p.m. to see if he's available but he's at lunch. So I go to the lawyer / officer room they have set aside at the courthouse. I like the idea behind this sort of room as a place where we can go between cases or to talk with officers or to use the available phone (perhaps the most important feature). The room is even laid out well with nice tables and chairs, a couch, a monitor which scrolls the docket, its own restroom, and a separate room for the phone. Unfortunately, they put it off a hallway away from the courtrooms between the prosecutor's office and the judges' secretary's office. This means it is not convenient for anyone. It's not a place you can go get 10 minutes away from everyone in the waiting area between cases. It's not a convenient place to go speak with officers. In fact, I'm not sure that the majority of attorneys even know it's there. I think I've seen maybe two other attorneys use the room and I've never seen an officer in there.
Anyway, after I sit and read for about a half hour I go back to the prosecutor's office and he's back from lunch. I get in to speak with him and it becomes obvious that most all the cases are going to be worked out fairly easily although in a couple cases the prosecutor wants to talk to the officer first.
Juvenile court day. I don't often take cases from juvenile court; in fact, outside of the circuit wherein I have my office I don't take any. Some of the worst cases I've ever had have been assigned came from juvenile court. Some of the worst run courts I've been in have been juvenile courts (although not the ones in my circuit). The court appointed pay at juvenile court can destroy you because you can end up on cases for months doing all sorts of time consuming research and making appearances at 8 hearings and in the end only get paid $112 (it's happened to me more than once). It's also a frustrating court to practice in because it doesn't seem to have sunk in to a lot of people that the juvenile record no longer goes away. Convictions seem to come far too easily and they now taint the kid for life (although, judging from recent experience, this has changed in my home jurisdiction). All that said, I still take cases in my home jurisdiction because (1) it's my home jurisdiction and I have a duty to serve in it, and (2) the prosecutors aren't entirely out of touch with reality. ;-)
So my first case is called. It's a possession of cocaine case. My client's mom is with him and she's all over him about how stupid this was and how it could ruin his future; Client is embarrassed and a little ashamed. Client pleads guilty and the judge decides that he should test Client for drugs today. So the case is recessed while Client goes to get tested.
Next is a young lady charged with petit larceny of a license plate. We go in to plead guilty and get it taken under advisement when the judge realizes that the lady who came with Client isn't her mother but her aunt. The case is continued for a month until my client's 18th birthday when it won't matter if her mother shows or not.
Then comes a case in which my client drove up to the drive through window at the fast food joint where he worked and sprayed pepper spray in the window as a prank. His mother is mortified and has already punished the kid pretty severely. The kid is overcharged with felonious assault by use of a caustic substance causing injury. The prosecutor agrees with me that the charge should be simple A&B and the officer recommends the same thing to the prosecutor (he doesn't think it's an overcharge - he just thinks the kid did a young, dumb, male thing and doesn't need a felony adjudication). When we go into the courtroom the judge realizes the complaining witness is his next door neighbor and recuses himself. So we get sent to a courtroom down the hall and when we get there it is closed. We all stand there for a couple minutes trying to figure out what was going on and finally a deputy comes and tells us to go back up the hall to a courtroom right next to the one we came out of. Once we got in front of the other judge it was relatively easy: Client's case is taken under advisement for 6 months with a requirement he do community service and an eye toward dismissal.
When we get back to the original courtroom we are in for a bit of a shock. While we were gone my next client and the officer had negotiated a continuance between themselves. They're already sitting at the tables when we get back in the courtroom. So we have a quick joint continuance motion and my client leaves.
We finally get back to my original client who comes back to court completely clean of any drugs or alcohol. Client's mom knows that even if this case is taken under advisement the judge will take her son's license for 6 months and wants me to see if I can talk him into not doing it. I tell her that this county always takes the license (because it's often the most effective punishment) but she still pushes me to ask. So we go back in and the judge takes Client's case under advisement, orders community service, and suspends my Client's license. At this point I point out that my client has two jobs and drives to and from school and ask if there is any way the judge can allow him to have a license. "Sure, Mr. Lammers, there's a way but we don't do it." He then launches into a well rehearsed speech about how even though the law allows restricted licenses the judges in Chesterfield County don't issue them to minors. You could tell the judge had given this speech many a time before; he even had a prop. About a minute into his speech he pulls out a bumper sticker which says "You Use, You Lose." He asks my client if he's seen these around (Yes). He asks my client if he knows what it means ("If you use drugs you lose your license."). Judge: "So you knew what would happen if you used drugs." The judge then tells the kid that he's going to have to ride the bus to school and that Mom is going to have to drive him to and from any job. When we leave court Mom is totally satisfied. Hearing from me that her son wasn't going to keep his license was unsat but hearing it from the judge made everything hunkey-dorey.
That case ends the 10 a.m. docket at about 10:40. I have one case on the 11:00 docket but he's never come see me. I go out in the hall and call for him but no one answers. I go back out at 10:50 and call and he doesn't answer but the mother of his children walks up and tells me she doesn't think he's going to show up because "he's always here by now if he's coming." Nonetheless, Client shows up just at 11:00. I talk to him a little about the contempt of court charge he is facing and we go in. Client's contempt charge rises from failing to appear for a hearing about child support. The judge and him talk about child support issues and it becomes clear that Client now has a job which pays decent and money is getting where it needs to go. Then we address the contempt charge and I point out to the judge that it makes no sense to either fine a man who is already behind financially or throw him in jail and cost him his job. The judge says, "We'll see Mr. Lammers" and puts the case off for 6 months so Client can come back with more of a record as to his job and child support payments. I talk to Client for a couple seconds in the hall and he takes off.
As I go back to grab my briefcase from the courtroom the deputy stops me and tells me Mr. Smith is looking to talk to me. I don't know Mr. Smith from Adam but I walk over and he tells me I'm his court appointed lawyer. News to me. So I run back and check the paper copy of the docket and, sure enough, on the very last page I'm this guy's lawyer. It's a little bit of a shock because this clerk's office has always been very good at letting me know that I'm appointed to represent someone. Anyway, Client is an adult accused of grand larceny against his father. Proving that I can do a larceny in my sleep I talk to the client for a few minutes. Then I talk to the officer and the prosecutor. Client then comes into court and pleads to a misdemeanor with all suspended time on the condition that he enter and complete Day Reporting Center (a year long, intense drug treatment program). Everybody leaves court happy with this.
When I get back to my car I check my voicemail and there's a message from another prosecutor about my two felony cases for the next day. So I go over to the main courthouse and spend a hour or so there. A good portion of that time is spent when the prosecutor and I go looking for a detective who might have some good information about the case (we know he's in the courthouse, we're just not exactly sure where). I eventually find the detective but the info's not helpful (at least for my purposes).
In the morning I go to the general district court first (it starts a half hour before circuit court). When I get there I find no client and there's a capias for him alleging that he did not comply with pretrial reporting and drug testing obligations. Because there is already a capias the judge does not issue another and the case is continued to the officer's next date.
Then I go upstairs. I'm not in any huge rush because I know the prosecutor is going to ask for continuances in both cases. Docket call had been Monday a week before and the subpoenaes for this court date had hit people's doors on Monday or Tuesday of this week. Pity the poor prosecutor who has spent the last two days fielding phone calls like this: "I'm going to Idaho tomorrow for Thanksgiving. I planned this trip 2 months ago and paid $400 for the tickets. My 97 year old grandmother is going to be there and it's probably her last Thanksgiving because she has cancer. I don't care what this subpoena says, I will not be in court tomorrow." He's continuing case after case and the judge looks none too happy about it.
My first continuance is a joint motion. I point out that client has just received a sentence from him the week before and that she has picked up some time in another jurisdiction so she is going to be held for a while and the court can set this for a late date if he wants. "The court does not want to." Then the judge gets the case set for two weeks later.
The second continuance is a prosecution motion and I object to that one. My client is ready to plead not guilty and go to trial. Nevertheless, when the prosecution points to its lack of a subpoenaed witness the judge grants the continuance. It doesn't really matter much to the client who is serving time on another charge but it irks me because I think Client, who is not an angel by any stretch of the imagination, is actually innocent of this charge; I want to go to trial.
It appears that with the surplus in funds which Virginia is currently experiencing and the constant attacks from pretty much everywhere about the low fee caps that Del. Richard Black (R-33) may step up with a proposal to raise the cap 50%.
More on a Textual Interpretation of the 4th Amendment
John raises some interesting questions about my claim to be a textualist and how I would apply that to the Constitution's 4th Amendment:
"As a textualist, how do you propose to ever protect people's telephone conversations (words are not tangible). Moreover, how do you define unreasonable. Is the warrant requirement necessarily related to reasonableness? IS it related to the first clause AT ALL? It doesn't HAVE to be, and they can be read apart from one another."
Well, let me first say that I never said I am a strict constructionist. Strict construction suffers from many flaws. Holding to only the exact words is a way to ignore their meaning.
I said I am a textualist. As such I would look to the traditional tools of construction in order to reach a rational interpretation. Primary among these in a criminal case is always the Rule of Lenity: if there is ambiguity it must be construed against the government. I cannot think of an exact use of the doctrine at the moment but it weighs the analysis throughout.
The next doctrine I would apply would be noscitur a sociis: interpreting words by relating them to the words around them. As we look to the four words the founders included - "persons, houses, papers, and effects" - these are perhaps the most expansive words that a pre-electronics political mind could come up with to describe everything which could possibly be searched or seized. As we look to each, "persons" surely means the clothes on the person, his wig, &cetera (unless you can honestly tell me you think it means that the nude body alone cannot be seized or searched). "Effects" clearly captures the essence of any and all personalty which might belong to a person. "Houses" seems pretty self descriptive but,looking at the words around it, it probably is meant to encompass more than the mere brick and mortar building (the curtilage & privately owned realty in general).
The word which interests me the most is "papers." Papers is meant to purvey the meaning of records and communications. More specifically, it means diaries, letters, business records, &cetera. Thus it means "communicative mediums." The other option is that it only applies to all the cellulose pulp you own. So, if you were a religious man trying to keep records as they were kept in the Dead Sea Scrolls your writings would not be protected. Leaving this aside the cellulose pulp is also protected as an effect. Assuming that "papers" was meant to have a meaning (why else include it) it must mean something unique not conveyed by the other words: communicative mediums. The same protections which applied to letters would apply to telephonic or radiophonic or internet communications because they are doing exactly what letters used to do (albeit much faster); they are modern day letters. In the same vein business records, diaries, &cetera which used to be kept in books are now kept electronically in computers. Therefore, informational computer files are also "papers." The words may not be tangible but the medium is protected - but then the words scratched on the paper were never directly protected (by the 4th Amendment) only the medium was shielded (papers).
The Possible Reading as Separate Sections: It's one sentence, dealing entirely with criminal matters, offered as one Amendment to the Constitution. It is a rational and plain reading of the sentence to tie it all in together. If anyone thinks this sentence could be read with the two parts separated into one part about searches and seizures and the other about warrants I refer you to the section above about the Rule of Lenity. I also would point out that the other possible reading of warrant is for an arrest but that this could not be the entire meaning of the second part of the sentence because it speaks of "the place to be searched, and . . . things to be seized." The warrant section may be wider but the first part of the sentence is definitely encompassed within the second.
Unreasonable: As the first part of the sentence is encompassed within the second, the definition of unreasonable would be that which violated the requirements of a warrant. In other words if there is no probable cause it is unreasonable to search or seize.
Gotta admit I got no "plain text" definition of probable cause for you (and I'm not going to take the time right now to try and work one out; supper beckons).
Hope that's interesting and informative. Tomorrow I should post the long promised (at least since Saturday) Week in the Life post. It's done but I got too interested in this subject to post it today.
Along with my top of the line computer I also have a 19" CRT monitor. While flat screen LCD models are great space savers they cost more and don't have the really sharp graphic images I want when I, ummmm, when I'm looking at VersusLaw online or typing work related stuff. The picture is really sharp. However, about 25% of the time the screen is split in two sections by a cat's tail since Bit thinks that the monitor is the perfect cat warmer.
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.