Crimlaw

A Whole New Rule For Search - The Old Rule

2012-01-26T15:16:00.001-05:00

The BIG FUSS this week has been about United States v. Jones, JAN12, USSC 10-1259. I read about it first on my phone during a break in a jury trial I was prosecuting on Monday. The headline said pretty much what I've seen others say: The Supreme Court Requires Search Warrant for GPS Tracking of Vehicles.

Of course, this headline isn't exactly right (they never are). After my week slowed down a little, I finally got to read the Scalia opinion and I must say that I don't have a lot of heartburn with it.

Facts: A search warrant was gotten in the District of Columbia in order to put a GPS tracker on a car. The warrant ran out without the GPS tracker being placed on the car. Government agents, after the search warrant had lapsed went into Maryland and placed the GPS tracker on the car. The evidence gained from the tracker was used in the Defendant's trial. Government's Argument: There was no search because the defendant had no reasonable expectation of privacy as he drove his car on the street.

New Rule: There is now a two part test to determine whether an act by the government is a search (either makes it a search):

1: Is the act a trespass on the property of the suspect?

1a: Exception: If the act (i.e. attachment of a gps tracker) is done before the item becomes the property of the suspect then it is not a search even after it has become the property of the suspect.

Note: Property in this case does not just mean land; it also means personal property such as cars, purses, briefcases, etc.

2. Does the act violate the suspect's reasonable expectation of privacy?

Note: With the trespass rationale coming back to the fore, the role of the reasonable expectation of privacy might become narrower. In most cases the opening of a car trunk or entry into a building is a trespass. Therefore, the reasonable expectation of privacy would apply to something else. The thing which pops into my mind is "emanations." Emanations are those things which escape from a persons property through the air (energy, heat, smell, sound) and do not require the police to actually touch the suspect's property. Reasonable expectation of privacy requiring a search warrant for emanations tracks with the cases such as Katz (sound that emanated out of a phone booth required a search warrant) and Kyllo (energy emanating from a house required a search warrant).

Exceptions: 2a: Those emanations which are readily noticeable by a person may not require a search warrant. For instance an officer that smells marijuana, or sees stolen property in a car or hears someone in a house yelling "Rape!" would not have to go get a search warrant.

2b: Emanations (scents) which are alerted to by a dog do not require a search warrant per Cabelles.

Note: Any information which can be retrieved about a person without trespass on his real or personal property should go through a reasonable expectation of privacy analysis. Emanations are just the most obvious. Others might be mail or billing or . . .

WHAT THIS CASE DID NOT DO: The Court specifically declined to address whether it was reasonable for government agents to place the gps tracker without a search warrant because the government did not argue this below. Thus there is no actual mandate for a search warrant to attach a gps tracker. However, common sense tells us that reality on the ground is that in the majority of cases a warrant should be obtained. If we ever get to the point that every officer is carrying trackers on his belt and can throw one on the back of a car escaping a bank robbery then it wouldn't be required, but short of that it is hard to picture a scenario in which officers don't preplan the use of a gps tracker so that a search warrant should be obtained.

Waterfall Instruction

2012-01-23T03:31:00.013-05:00

In Virginia there's a charge of Grand Larceny with intent to Sell or Distribute (we ain't having any of that Robin Hood stuff here). It's the first part of § 18.2-108.01:

A. Any person who commits larceny of property with a value of $200 or more with the intent to sell or distribute such property is guilty of a felony punishable by confinement in a state correctional facility for not less than two years nor more than 20 years. The larceny of more than one item of the same product is prima facie evidence of intent to sell or intent to distribute for sale.

The problem is that there are several lesser included offenses within this statute including plain Grand Larceny, Petit Larceny, and Possession of Stolen Property with Intent to Sell. Of course, there is no model jury instruction which covers all this. I had to make one of my own. When an instruction starts out with one greater charge and the possibility of conviction of it or lesser included charges it's called a "waterfall instruction." Here's my attempt. Enjoy!

The defendant is charged with grand larceny with the intent to sell or distribute the stolen item. If you believe from the evidence beyond a reasonable doubt that the defendant

1) Took property which belonged to John Smith; and

2) The property was taken without John Smith's consent and against her will; and

3) The defendant intended to permanently deprive John Smith of the property; and

4) The property was worth $200 or more; and

5) The defendant knowingly possessed the stolen property with the intent to sell or distribute it,

then you shall find the defendant guilty of grand larceny with the intent to sell or distribute the stolen item.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven all the elements except the fifth, then you shall find the defendant guilty of grand larceny.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven only the forth and fifth elements you shall find the defendant guilty of possessing stolen property with intent to sell or distribute.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven the first three elements, but has not the forth element you shall find the defendant guilty of petit larceny.

If you find that the Commonwealth has failed to prove any of the above offenses beyond a reasonable doubt then you shall find the defendant not guilty.

I never charge this if I can help it. There are no sentencing guidelines for this offense, which makes it a pain to deal with when the defendant has 17 prior convictions and the defense attorney comes to me asking for a sentence of 3 months because the guideline recommendation of 2 years which would have been on the table for plain grand larceny aren't available. On the other hand, if I charge the defendant with grand larceny and possession with intent to sell or distribute there are two appropriate charges along with guidelines. On the other hand, this is a great charge to take to a jury with all the options that allow the jury to decide exactly what they think the defendant should be convicted of (or, of course, the jury could reject them all and find not guilty).

It's Back!!!!

2012-01-17T17:56:00.000-05:00

Raylan Givens and the gang are back to terrorize Harlan County, Kentucky - as he brings his particular brand of justice home.

Tonight 10:00 p.m. on FX.

Revisiting the Big 4

2012-01-11T00:58:00.003-05:00

As you'll all recall, a couple years back I staked my claim to the Big 4 reasons that people can't possibly go to jail. By the way, several of you defense attorneys are behind on your payments for the use of my copyrighted/trademarked reasons. I'm sure it's just an oversight.

Anyway, I was talking to another attorney a few days back and he had, independently, developed a chart in which he measured the the probability that a defendant would develop a relationship with God or find a well paying job against the probability that he was going to jail. He stated that there was an amazing correlation between between the two. I thought this was pretty cool and sat down to plot the Big 4 on the same sort of chart (as I see them where I practice; your mileage may vary).

Illness is an epidemic among those heading to jail. It's both a reason why a person cannot go to jail and a reason why that person, if she must go to jail, can get occasional vacations (furloughs) from jail so that she can go to the doctor to deal with her problems (and visit home; and get a meal a McDonalds; etc.). Honestly, I think that a fair portion of these people actually have pre-existing medical conditions. However, I cannot help but notice that a rather large percentage were not going out of their way to deal with their medical issues prior to getting charged. In fact, it's amazing how many people have a doctor's appointment scheduled the day after they are scheduled to be sentenced by the judge and how that broken tooth the defendant has had for a year suddenly starts to throb terribly once she's in jail, becomes a health risk, and needs three dental appointment furloughs to fix.

Job is another way to try to stay out as well as a way to mitigate the actual sentence. An impressive number of people get jobs before they come to their sentencing hearing. A not insignificant number will tell the judge that they have a job waiting as soon as the uncertainty caused by this criminal sentencing is over. A smaller number will tell the judge they've got that job interview today or tomorrow for a job they're sure they'll get. The implication is that if the judge locks them up he will cause them to lose their jobs and ruin their and their family's lives. Of course, if the judge gives them jail time then they want work release. Mind you, work release isn't a terrible idea for someone who is not a repeat offender, is convicted of a minor offense, and has a decent job (not just fry-guy at the local Burger Grease Palace). The problem with work release always turns out to be the guy who got a "job" working for his subcontractor uncle and just goes home every day to watch TV or the ones who think they are clever and slip off to *ahem* "meet" with boyfriend/girlfriend for 30 minutes when they are sure they won't be missed. I don't know how often these things actually happen; all I know is that I've been involved in cases where they happened often enough that these are the first two problems that pop into my mind when I think of work relief.

Family need is always there, but the defendant seems to become acutely aware of it when she is looking at a jail sentence. She didn't think of the family when stealing the TV from Mega~Mart or when she was dealing drugs in front of her kids, but she absolutely has to be there for them now. They cannot make it without her there to support and protect them. This is a mixed bag. Any prosecutor worth his salt is going to doubt the sincerity of the defendant. She has a history of not caring about her family and the way she's acting right now seems more like an attempt to leverage her family for her benefit. On the other hand, defense attorneys will be more likely to believe their clients' sincerity and become upset at the prosecutors' lack of compassion. Of course, caught in the middle of this is the family itself and the very real concern that, even if Jane Smith is 40% of the mother we wish she were, will we harm the children by depriving them of that 40%? In most cases, the family need is raised as an all or nothing issue. Either the defendant stays out to help her family or she goes to jail and the family is harmed. Sometimes, this is used in conjunction with the job attempt at palliation under the rationale that the defendant must continue to provide financial support to her family.

Finding God seems to tie in more often to when defendants are being held in the jail pretrial. Churches send people to the jail to spread the Good Word and with little else to do the defendant goes to services and Bible studies and classes on good Christian behavior and etc. Sometimes defendants come to the sentencing hearing with a stack of completion certificates a couple inches high. While there obviously some trying to manipulate the system, I think the majority of these are sincere. However, experience has also taught me that once these folks are back on the street and hanging around with their buddies on the outside they will fall back into their wicked ways. So, while I'm sure that a lot of us hope that there are true conversions that hold up under testing, I've not seen too many people get out of their sentences thru conversion. However, I've seen lots of pastors and deacons in court fighting for a member of the body as well as his soul.

Centre: The Best Among Us

2012-01-05T17:09:00.002-05:00

Forbes ranks colleges and has become enamored with Kentucky. Furthermore, it has spotted the gems of Kentucky Education: Berea & Centre. Berea because it gives those who have little other opportunity the tools to better themselves. Centre because . . . well, because it's Centre.

"Centre is one of the finest schools in the U.S. Forbes ranks Centre as one of the nation’s top 20 liberal-arts colleges, above such famous Ivy League universities as Columbia, Cornell, or the University of Pennsylvania. Its secret, I think, is an unrelenting, laser-like focus on offering a superior experience for students."

Oh, and they also mention Transy. Not sure why.

Another State's Fix of the Law of Stealing

2012-01-04T04:06:00.007-05:00

Here in Virginia we have larceny, larceny by trick, embezzlement, fraud, concealment (shoplifting), larceny of farm animals, larceny of milk crates, bad checks, &cetera. It's a pain. That's why I love this section of Texas' statute:

Sec. 31.02. CONSOLIDATION OF THEFT OFFENSES. Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

I get choked up just looking at it.

How do I get the Virginia General Assembly to adopt that statute? Please?

Model Penal Code: Error in the Intent

2012-01-03T03:36:00.108-05:00

Having said yesterday that I wish we would cherry pick the intent section from the Model Penal Code (MPC), let me not leave you with the impression that it is perfect. Specifically, there is a difficulty in that jurors have been shown to have trouble distinguishing between knowing acts and reckless acts. This is not terribly hard to understand.

(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

Under "knowingly", (b)(i) is pretty straight forward; if it is illegal for a felon to knowingly possess a firearm and a felon knows he is possessing a firearm he satisfies that portion of the "knowingly" intent.

However, "knowingly" under (b)(ii) is the big brother of "recklessly." In other words, they are variants of the same thing. In both, the defendant has committed an act which results in a forbidden result. However, in "knowingly" doing the act it results in a "practical certainty" of an illegal result while "recklessly" doing the act only results "a substantial and unjustifiable risk" that the illegal result will occur. These are different degrees of the same thing, but with the modern aversion to actually assigning differential meanings it's doubtful that anyone will say something like "knowingly means the defendant knew to a 99% certainty that the illegal result would occur while recklessly meant he knew there was a 75% probability that the illegal result would occur."

I can understand why this could be confusing to jurors. It's the same reason that all sorts of things are confusing to jurors: because we lawyers over complicate things. I'm not sure why we need the "knowingly" intent. It seems to me that one cannot do, or omit the doing of, something purposefully without knowledge of it. The "knowingly" intent is redundant.

But, you say, what if the defendant knows he is doing something, but does not have the purpose of doing the crime? After all, someone could take Felon's wife hostage and require him to take a pistol and hide it. As well, Suspect going to jail could have been arrested with drugs secreted on her body and have it found after she is in jail and strip searched. In the first case, I would argue that Felon does purposefully possess, but that he has a powerful duress defense. In the second case, Suspect is faced with two possibilities and makes a choice: admit possession and get another charge before arriving at the jail or taking a chance that the drugs won't be found when she gets to jail. Either option is a purposeful act or omission. I am hard pressed to think of any crime where mere knowledge without a purposeful act or omission constitutes a convictable crime.

Thus, I would alter the MPC's intent section so that only Purposeful, Reckless and Negligent intents would constitute crimes. I would also add some language to the "Purposefully" section which would make it clear that both acts and omissions constitute purposeful acts and that doing or failing to do something with a knowledge that it will cause an illegal result is a purposeful act.

Model Penal Code: One Nugget

2012-01-02T04:14:00.021-05:00

Back in the day, the good folks over at the American Legal Institute (ALI) decided that nobody was getting criminal law right. Although in other areas of the law the ALI had issued "Restatements", it wrote its own brand spanking new Model Penal Code (MPC). From the late 60's to the early 80's various States abandoned the common law and adopted large portions of the MPC. I have seen a quote that claimed as many as 35 States have adopted the MPC, but I am skeptical of this because it listed Virginia as an adopter and Virginia very clearly remained a common law state; you don't cite or quote the MPC here.

In the end, the MPC has had - at best - mixed results. It was used by a number of States as a means to sheer off a lot of dead weight that had built up over the years, but failed to unify criminal law throughout the United States. The federal government probably has the most labyrinthian, byzantine, in need of fixing criminal code in the U.S.; it has never so much as given it the time of day to the MPC. The MPC has also been roundly criticized for not dealing with drug crimes, which has left even the States which adopted the MPC with a jumble of very different drug crimes. Lately, the ALI has chosen to abandon the attempt to write laws in connection with the reality on the ground and politicized the MPC when it voted to remove capital punishment in direct contravention of 2/3 of the States and the federal government. Generally, it begins to look more and more like the MPC's day has come and gone and that any changes to it are not going to be attempts to grapple with the realities of modern criminal law and punishment in an attempt to make them operate as best possible. Instead, it looks like it's headed to some politicized ideal which will never pass a State Legislature.

This is something of a shame. There are definitely parts that I wish we had adopted in Virginia. First and foremost, I wish we had adopted some version of the MPC's intent (mens rea, scienter) section:

Model Penal Code § 2.02. General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined

(a) Purposely.
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

There's more to this section, but this is the most pertinent.

I've seen a lot of articles talking about this as the greatest innovation of the MPC and I tend to believe them. The common law is a disaster for intent in crime. There are general intents and specific intents and willfulness and wantoness and statutes and case law can require different formulations for each crime. Most disturbingly, our Virginia Appellate Courts have decided that the default for criminal statutes is strict liability. The MPC cuts through and corrects all that.

Personally, I don't think the MPC is politically viable in Virginia, but if we could only cherry pick one part of it, I'd want this one. Of course, it would cause a massive rewriting of all the other criminal statutes in Virginia to come in line, but I'd be willing to let some legislator's aide slave away doing that for the greater good of all. I'm sure she would understand and happily pitch in.

Let 'em Go: Early Release from Prison

2011-12-26T10:24:00.002-05:00

Sentencing is where philosophy meets fiscality. The fiscal part is that which is impossible to get around. At least for the States, which cannot just print more money, there will always be scarce resources beyond which they cannot afford to lock more people up and throw away the key or to provide programs to reform those who have broken the law.

Two Schools of Thought

The philosophical realm is where the fighting takes place. There are basically two sects. The first views the criminal as someone who should be punished. This view tends to conceptualize the criminal as an individual actor who makes moral choices for which he must be made to suffer consequences. The second views the criminal as someone who should be fixed. This view tends to see criminals as members of a community which has let the criminal down (and thus led him to develop anti-social behavioral characteristics) and which will be damaged by the individual's punishment.

Of course, neither side is entirely correct, but the punishment view has had the most influence over the last thirty years or so. This is in large part because the citizenry understands and approves of the punishment model. Citizens tend to believe in punishment for criminal acts. They understand that a criminal is incapacitated and cannot commit crimes while in prison. They believe that when someone is significantly punished and his buddies/family/neighbors hear about it that it will lesson the probability that the buddies/family/neighbors will commit crime. They are dubious that coddling wrongdoers will cause them to see the error of their ways and seek a life beneficial to society. Politicians, beholden to their constituents, have voted in laws which reflect these views.

Nevertheless, the reform the troubled criminals theme has never gone away completely. This is because, at core, it is the more hopeful way of seeing the world. If only we did X and Y we would fix these men so that they would never break the law again. The problem is that, while it may reflect the better parts of our nature, it doesn't reflect reality. Still, for at least the last decade we have allowed our better natures to allow things like drug courts and DUI courts to come into being. Usually, these reform programs come about as a push for a criminal reform program cloaked under the claims of fiscal responsibility. If it costs $A to put Criminal in jail for a year, a year in drug court costs $B, and $A > $B, then it makes sense to put worthwhile cases in drug court.

However, the push for fiscal responsibility can only carry the rehabilitation movement so far. How far can be seen in the cases Professor Klingele discusses in "The Early Demise of Early Release." States have attempted, mostly for fiscal reasons, to adopt early release programs for inmates who are deemed at low risk to break the law if released. These have been rebuffed as "illegitimate changes in the underlying sentence." In other words, changing the sentence of a convict is a lie to the citizenry.

Nevertheless, Professor Klingele pushes forward with suggestions as to how early release programs can be brought into existence and strengthened. It is a difficult argument to make and Ms. Klingele's valiant attempts swim upstream against a strong current springing from the failure of indeterminate sentencing.

What Professor Klingele is Arguing Against

Indeterminate sentencing is the procedure of setting a maximum possible sentence, but not setting a specific sentence. The indeterminate sentencing system with which most people are familiar with is the parole system which held sway in the United States until late in the 20th century. The idea behind parole was a medical treatment model for inmates: with proper treatment they could be returned to society rehabilitated into proper members of society. Eventually, this model came to be seen as a failure and it was swept away in most States by "truth in sentencing" laws. TIS laws were put in place in the majority of States in the latter part of the 20th century. They changed the laws so that a defendant would serve the time he was sentenced to serve instead of whatever fraction of that time he would have done under the parole system. So, instead of getting a sentence of 5 years with the Department of Corrections deciding when to release the inmate at any time after he served 33% of his sentence, the defendant sentenced to 5 years would serve 5 years.

This came about because of a perception that rehabilitation efforts had been failures and that convicts were receiving appropriate punishments, but not being required to actually serve them. Parole embodies the hope that exemplary prisoners can be "fixed" and released to go forth and lead productive lives. However, the public viewed it more as a revolving door on the prison. In reality, the public's view was probably closer to reality. Departments of Correction were not going to be able distinguish between the thousands of offenders they dealt with and offenders got dumped back out on the street as soon as possible, unless they were particularly bad while in prison. This ended with TIS.

TIS was followed by Victims' Rights legislation. This was meant to counter the perception that courts were overly worried about the criminals at the expense of the victims. Victims were to be allowed access to courts and have their experience be taken into account. This type of legislation is clearly an indicator that the citizenry wanted an appropriate punishment model - not a rehabilitative model.

Interspersed with this has been a tendency of legislators to pass mandatory, non-suspendable punishments for certain offenses or multiple convictions of certain offenses. These have been applied to felons possessing firearms, the possession of firearms and drugs at the same time, driving under the influence of alcohol, and three strikes laws. Here is found the trifecta of purposes for incarceration: punishment, incapacitation, and a warning to others who might offend.

Why Early Release Has Not Worked

Professor Klingele cites three reasons for the failures of early release. The first is financial constraints which limit the money which can be spent reintegrating prisoners into society. The second is political impediments to early release. The third is the fact that the moral values of the citizenry are such that they believe a person sentenced to 5 years should serve 5 years. Personally, I agree with her on the second and third points. As to the first point, I think this is a failure of the criminal justice system generally and not particular to early release prisoners.

What to Look for in Future Early Release Programs

Professor Klingele next looks to what should be considered in future programs. First she wants honesty in assessing whether an inmate will re-offend. She wants violent and sexual offenders to be considered on the same plain as lesser offenders because it is clear that in some cases the inmate who has committed the worse crime is less likely to re-offend. Next she calls for clarity, reasoning that if participants in the legal system act tough on crime up front and then try to sneak inmates out the back door of the prison that people will get upset. Finally, she urges those who want to reduce sentences because they view them as overlong and therefore unjust to stop arguing through strawmen (like saving money or reducing recidivism) and instead argue that the sentences are overlong and unjust.

------

Merry Christmas

2011-12-24T16:29:00.000-05:00

Merry Christmas everyone!

Defending Kentucky's Persistent Felon Laws

2011-12-23T11:00:00.001-05:00

Ray Larson, the Commonwealth Attorney in Lexington Kentucky, explains the need for for Kentucky's persistent felon laws:

Appellate Cases : The Difference Between "Wanton and Reckless" and an Error

2011-12-19T04:12:00.254-05:00

Last week, I expressed disappointment that Virginia's appellate courts are still letting very strict reliance on rules (colloquially known as "technicalities") keep them from addressing the substance of appeals. In particular, I noted that in Davis v. Commonwealth, NOV11, VaSC No. 102420, in which the appellant cited the error, but said the trial court made it instead of stating that the Court of Appeals had made an error by agreeing with the trial court. As I characterized it, the Supreme Court refused to hear the case because the appellant stated “The trial court was wrong in that . . .” instead of “The Court of Appeals was wrong in not finding that 'the trial court was wrong in that . . .'”

I suggested that the General Assembly pass a statute requiring Virginia's appellate courts to address the substantive issues of an appeal unless the appellant's attorney engaged in "wanton disobedience or extreme negligence" in the filing. Even then I suggested that the appellant not be punished, but that the attorney be removed and the appellant given another appeal with a different attorney.

Within short order, this comment was posted:

Rule 5:17 clearly states:
"An assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken . . . is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed."
I have a hard time understanding why an appellate attorney's failure to either (1) read or (2) understand that requirement does not constitute "wanton disobedience or extreme negligence"? Or to put it another way, should attorneys get a pass for being plain dumb?

Always enjoyed a challenge, so I thought I'd address this one.

First, let's address the "Should an incompetent attorney get away with it?" section of the comment. No, but that misses the point. The appeal is not for the benefit of the attorney. It's for the appellant. It's hard to make a case that it is just and/or moral to deny the appellant the ability to correct a putative trial error because the appellant's attorney makes an error in form that does not cloud the ability of the appellate court to understand the substance of the putative error. If a pound of flesh must be paid, it should come from the attorney - perhaps from the Bar, perhaps from court sanctions - if the error is so grievous that it is clearly "wanton disobedience or extreme negligence."

Second, let's determine whether the error in Davis is such that it is not simply an error, but so serious that it is "wanton disobedience or extreme negligence." To begin with, let's address the Supreme Court Rule 5:17. Here's the rule (post continues on the other side of massive rule):

Rule 5:17. Petition for Appeal

(a) When the Petition Must be Filed. --Unless otherwise provided by rule or statute, in every case in which the appellate jurisdiction of this Court is invoked, a petition for appeal must be filed with the clerk of this Court within the following time periods:

(1) in the case of an appeal direct from a trial court, not more than three months after entry of the order appealed from; or

(2) in the case of an appeal from the Court of Appeals, within 30 days after entry of the judgment appealed from or a denial of a timely petition for rehearing.

(b) Who Must Receive a Copy of the Petition. --When the petition for appeal is filed with the clerk of this Court, a copy of the petition shall be served on opposing counsel.

(c) What the Petition Must Contain. --A petition for appeal must contain the following:

(1) Assignments of Error. Under a heading entitled "Assignments of Error," the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error.

(i) Effect of Failure to Assign Error or Use Separate Heading. Only assignments of error assigned in the petition for appeal will be noticed by this Court. If the petition for appeal does not contain assignments of error, or if the assignments of error are not set forth under a separate heading as provided in subparagraph (c)(1) of this Rule, the petition shall be dismissed.

(ii) Nature of Assignments of Error in Appeals from the Court of Appeals. When appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to this Court.

(iii) Insufficient Assignments of Error. An assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.

(2) Required Statements When the Appeal is from the Court of Appeals.

When appeal is taken from a judgment of the Court of Appeals in a case in which judgment is made final under Code § 17.1-410, the petition for appeal shall contain a statement setting forth in what respect the decision of the Court of Appeals involves the following:

(i) a substantial constitutional question as a determinative issue, or

(ii) matters of significant precedential value.

If the petition for appeal does not contain such a statement, the appeal will be dismissed.

(3) Table of Contents and Table of Authorities. A table of contents and table of authorities with cases alphabetically arranged. Citations of all authorities shall include the year thereof.

(4) Nature of the Case and Material Proceedings Below. A brief statement of the nature of the case and of the material proceedings in the trial court or commission in which the case originated. This statement shall omit references to any paper filed or action taken that does not relate to the assignments of error.

(5) Statement of Facts. A clear and concise statement of the facts that relate to the assignments of error, with references to the pages of the record, transcript, or written statement of facts. Any quotation from the record should be brief. When the facts are in dispute, the petition shall so state. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellant's version of the facts.

(6) Authorities and Argument. With respect to each assignment of error, the standard of review and the argument -- including principles of law and the authorities -- shall be stated in one place and not scattered through the petition. At the option of counsel, the argument may be preceded by a short summary.

(7) Conclusion. A short conclusion stating the precise relief sought.

(d) Filing Fee Required With the Petition. --When it is filed, the petition for appeal must be accompanied by a check or money order payable to the "Clerk of the Supreme Court of Virginia" for the amount required by statute. The clerk of this Court may file a petition for appeal that is not accompanied by such fee if the fee is received by the clerk within 10 days of the date the petition for appeal is filed. If the fee is not received within such time, the petition for appeal shall be dismissed.

(e) Number of Copies to File. --Seven copies of the petition shall be filed with the clerk of this Court.

(f) Length. --Except by leave of a Justice of this Court, a petition shall not exceed the longer of 35 pages or 6,125 words. The page or word limit does not include the cover page, table of contents, table of authorities, and certificate.

(g) Use of a Single Petition in Separate Cases. --Whenever two or more cases were tried together in the court or commission below, one petition for appeal may be used to bring all such cases before this Court even though the cases were not consolidated below by formal order.

(h) Procedure for an Anders appeal. --If counsel for appellant finds appellant's appeal to be without merit, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Brown v. Warden of Virginia State Penitentiary, 238 Va. 551, 385 S.E.2d 587 (1989). In compliance therewith, counsel is required to file (1) a petition for appeal which refers to anything in the record which might arguably support the appeal and which demonstrates to this Court counsel's conscientious examination of the merits of the appeal; (2) a motion for leave to withdraw as counsel; and (3) a motion for an extension of time to allow the appellant to file a supplemental petition for appeal. The petition for appeal and the motion for leave to withdraw as counsel should specifically cite to Anders. All three pleadings must be served on opposing counsel and upon the client and must contain a certificate providing evidence of such service. This Court will rule upon the motion for extension of time upon its receipt, but will not rule on the motion to withdraw until this Court considers the case in its entirety, including any supplemental petition for appeal that may be filed.

(i) What the Certificate Must Contain. --The appellant shall include within the petition for appeal a certificate stating:

(1) the names of all appellants and appellees, the name, Virginia State Bar number, mailing address, telephone number (including any applicable extension), facsimile number (if any), and e-mail address (if any) of counsel for each party, and the mailing address, telephone number (including any applicable extension), facsimile number (if any), and e-mail address (if any) of any party not represented by counsel;

(2) that a copy of the petition for appeal has been mailed or delivered on the date stated therein to all opposing counsel and all parties not represented by counsel;

(3) if a word count is used, the number of words (headings, footnotes, and quotations count towards the word limitation; the cover page, table of contents, table of authorities, and certificate do not count towards the word count);

(4) in a criminal case or habeas corpus appeal, a statement whether counsel for defendant has been appointed or privately retained; and

(5) whether the appellant desires to state orally to a panel of this Court the reasons why the petition for appeal should be granted, and, if so, whether in person or by conference telephone call.

(j) Oral Argument.

(1) Right to Oral Argument. The appellant shall be entitled to state orally, in person or by telephone conference call, to a panel of this Court the reasons why the petition for appeal should be granted. The appellee shall not be entitled to oral argument, whether in person or by telephone conference call. Any lawyer not licensed in Virginia who seeks to appear pro hac vice to present oral argument to the Court must comply with the requirements of Rule 1A:4.

(2) Waiver of Right to Oral Argument. The appellant may waive the right to oral argument on the petition for appeal before a panel by notifying the clerk of this Court and opposing counsel in writing, or by filing a reply brief.

(3) No Oral Argument on Pro Se Inmate's Petition. If an appellant is not represented by counsel and is incarcerated, the petition for appeal may be considered by this Court without oral argument.

(4) Notice of Oral Argument. If the appellant has requested oral argument, notice of the date and time of such argument shall be provided to counsel for the appellant or to any pro se appellant. If requested in writing, notice of the oral argument shall also be provided to counsel for the appellee or any pro se appellee.

I made it the smallest font I could because it takes up most of this post and I wanted you to see how big the Rule is and how many hoops the appellant has to jump through in order to get past the form requirements and have the substance of the case heard. The only sections addressed by the Virginia Supreme Court in Davis are the ones that I left regular size. Presumably, every single other of the nine million form requirements was met.

[1] Per 5:17(c)(1)(ii) the error which the appellant must "relate" to the assignment of error and actions taken by the Court of Appeals and per 5:17(c)(1)(iii) "an assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken" will be dismissed. It is not hard to read these sub-rules so that you would think assigning error to the actions of the trial court, which by their very nature "relate" to the assignments of errors and actions taken in the Court of Appeals. It's obviously not the way that the Supreme Court interprets the language, but a simple reading of it could lead someone into error.

[2] Per the Davis case itself, 5:17(c)(1)(iii) was added to Rule 5:17 on 01 July 2010. That's pretty new in a legal world which is resistant to change. As we all know, the Rule Book from last year is sitting on the shelf. The "How to Do Appeals Correctly in Virginia" book that somebody got at a CLE in March 2011 gets used. The form which the attorney has perfected and kept on his computer (to make sure he doesn't make errors) only gets used every year or two when the attorney does a rare appeal. These are all common problems which can cause mistakes to pop up.

[3] Appeals which involve constitutional questions, legal matters, and mixed questions of law and fact are addressed "de novo" by the Supreme Court. In appeals which involve findings of fact the Supreme Court is extremely deferential to the finder of fact (the trial judge). There is an argument that when the Supreme Court takes an appeal from a case that has gone through the Court of Appeals the Court of Appeals' opinion is rendered meaningless and thus the errors assigned make more sense if they address "the findings or rulings in the trial court."

Now, before everybody starts telling me how wrong I am, I am not saying that this correct.. I am saying that, keeping the above in mind, this is an indication that what happened in Davis is error due to simple negligence, not "wanton disobedience or extreme negligence."

All I want is for cases to have the substance of appeals to be more important than the form. Of course, I also want to win the lottery, lose 30 pounds, and bowl a 250. Not sure any of these things are going to happen.

Congratulations Josh

2011-12-16T14:36:00.000-05:00

A friend of mine just got sworn in as Commonwealth Attorney for Dickenson County, Virginia.

Congratulations Josh Newberry, The new Commonwealth Attorney for Dickenson County.

And his Assistant Commonwealth Attorney, Gerald Gray.

Cases 2011: Appellate Strict Adherence v. Legislative Response

2011-12-15T04:12:00.002-05:00

Despite what seems to be fairly significant efforts on the part of the General Assembly to stop the dismissal of cases and deemed “waivers” of arguments in the last 5 to 6 years, they continue.

Smith v. Commonwealth, MAR11, VaSC No. 101357

(1) The failure of the appellant to arrange for the timely filing of a necessary transcript does not deny the appellate courts jurisdiction. (2) Failing to file a necessary transcript waives the issue which the appellant preserved in the transcript.

Note: I believe this case was dealt with by HB2438 which gave a 6 months grace period in which an appellant can refile his appeal if the transcript was not timely filed.

Davis v. Commonwealth, NOV11, VaSC No. 102420:

(1) If the appellant appeals from the Court of Appeals, but does not assign error to the Court of Appeals the Virginia Supreme Court will dismiss the case for lack of jurisdiction to consider the appeal. (2) Assigning errors to the trial court when appealing from the Court of Appeals is not sufficient to give the Supreme Court jurisdiction.

Note: It seems clear that the appellant stated the error and that the court could discern the error the appellant wanted to address. This rejection is purely based on the lack of technical words not needed to decide the issue. In other words the appellant stated “The trial court was wrong in that . . .” instead of “The Court of Appeals was wrong in not finding that 'the trial court was wrong in that . . .'”

I wish the General Assembly would pass a statute something like:

19.2-XXX - The appellate courts of Virginia shall strongly presume that any error in the filing of an appeal is non-jurisdictional and does not in any way waive the substantive issues raised by the appellant. Except in cases of wanton disobedience or extreme negligence by the appellant's counsel to the laws of Virginia and the Rules of the Virginia Supreme Court, the appellate courts of Virginia will address the substance of the appeal and may only note the failings of the appellant to properly observe format requirements, filing requirements, and similar non-substantive matters as harmless error. In cases of wanton disobedience or extreme negligence the appellate court shall remove counsel and allow the appellant 6 months to refile with new counsel.

Cases 2011: Making New Common Law by Claiming Old Common Law Wasn't

2011-12-14T04:46:00.003-05:00

Advisement

The Court of Appeals remains dedicated to eliminating the common law procedure of taking cases under advisement to be dismissed with the fulfillment of certain conditions. The Court of Appeals is clearly seeking out cases it can use to eliminate this practice.

Hernandez v. Commonwealth, JAN11, VaSC No. 092524

(1) Until the court enters a written order finding the defendant guilty of a crime, the court has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date. (2) Once a judge has found someone guilty of a crime the punishment must be as laid out by the General Assembly. (3) A judge's statement that there is enough evidence to support a conviction is not a finding of guilt. (3) The VaSC makes no finding as to whether a case can be deferred/continued/taken under advisement with a promise of a particular disposition at a later date.

Note: Hernandez is significant as the Supreme Court's refutation of last year's attempt by the Court of Appeals to eliminate advisement.

Congdon v. Commonwealth, FEB11, VaApp No. 0531-10-2:

(1) If a defendant waives his right to a de novo appeal from the juvenile and domestic relations court, in a plea agreement with the Commonwealth, the defendant cannot appeal the court's decision (normally allowed under § 16.1-296(A) ). (2) The lower court's order cannot take away the defendant's right to appeal, but the defendant can bargain it away as part of his plea agreement with the Commonwealth. (3) A district court guilty plea is inadmissible in the de novo trial in the circuit court.

Note: Congdon and cases similar to it are significant because they establish that a prosecutor and defendant can make side deals. Thus, if a judge agrees to continue a case without any findings, a defendant could be required to complete conditions by the Commonwealth and have the Commonwealth move for a dismissal upon completion.

Taylor v. Commonwealth, JUN11, VaApp No.2236-09-1:

Upon a finding of facts sufficient for guilt, a trial judge does not have the power to reduce a conviction to a lesser offense or to dismiss it.

Note: Of all the decisions this year, this probably provoked the greatest reaction from me. See my blog posts

http://crimlaw.blogspot.com/2011/06/virginia-court-of-appeals-invalidates.html

http://crimlaw.blogspot.com/2011/07/advisement-lets-look-at-court-of.html

http://crimlaw.blogspot.com/2011/07/advisement-lets-look-at-court-of_19.html

http://crimlaw.blogspot.com/2011/07/advisement-theory-behind-it.html

This and Tharrington v. Commonwealth, SEP11, VaApp No. 1573-10-1 (When the legislature makes clear its intent to punish a defendant twice for the same offense under two different statutes there is no double jeopardy and no need to prove the two crimes each have a separate element), are the cases I most strongly disagree with this year.

Epps v. Commonwealth, NOV11, VaApp No. 1799-10-4:

(1) 19.2-303 allows a judge to suspend a sentence or suspend the imposition of a sentence. (2) 19.2-303 does not allow a judge to not find a defendant guilty after determining facts are sufficient to find the defendant guilty.

Note: The defense attorney in this case deserves points for originality, but the Court of Appeals isn't going to go to the trouble of slapping down the common law and then stretch to allow the same practice under a statute which doesn't quite fit.

-----------------------------------------------
Tomorrow: Appellate Strict Adherence

Cases 2011: Federal Cases on Pat Downs & Searches

2011-12-13T04:38:00.004-05:00

The 4^th Circuit has rejected a number of vehicle related seizures and searches in published decisions this year. In particular, the 4^th Circuit has expressed a concern that the government is trying to inflate minor, normal, innocent behavior and circumstances into reasonable suspicion. 4^th Circuit talks about “our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Powell, Massenburg, and Foster, infra.

US v. Foster, MAR11, 4Cir No. 09-5161:

(1) A police officer having knowledge of a suspect's prior criminal activity does not, by itself, establish reasonable articulable suspicion of current criminal activity. (2) The appearance of a person in a car an officer had not previously seen is not enough to establish reasonable articulable suspicion of criminal activity. (3) A suspect shifting his arms around in a car is not enough to establish reasonable articulable suspicion of criminal activity.

US v. Massenberg, MAY11, 4Cir 10-4209:

(1) The fact that the suspect stands a foot away from his companions, does not look at the officer when asked to allow a search, and refuses to allow a search (when companions allow one) is not enough to provide reasonable suspicion for a search. (2) The government cannot rely on whatever facts are present, no matter how innocent, as indicia of suspicious activity."

US v. DiGiovanni, JUL11, 4Cir No. 10-4417:

(1) An officer can ask question not related to the purpose of a traffic stop as long as the questions do not extend the time of the stop beyond a de minimus amount. (2) If an officer spends over ten minutes asking a detained driver about things not related to the traffic stop before conducting investigation related to the stop, it is an unconstitutional seizure. (3) There is no specific time that a traffic stop should last, but the mere fact that it only lasted 15 minutes does not render it constitutional. (4) The mere facts that the officer handed back license and registration and said “you are free to go” do not establish that the suspect's detention ended – other circumstances pertaining at the time must be examined.

US v. Powell, NOV11, 4Cir No. 08-4696:

(1) The mere fact that someone has a record does not, by itself, justify a pat down. (2) A violent prior record can justify a pat down. (3) When the officer receives information that the suspect has “priors” for a violent criminal offense it is not enough to justify a pat down without (a) a date of the prior and/or (b) information as to whether the suspect was convicted. (4) A suspect handing an officer a license which, when checked, turns out to be suspended is not enough to justify a pat down.

____________________

Tomorrow:

Making New Common Law by Claiming Old Common Law Wasn't (Advisement)

Cases 2011: Criminal Street Gangs

2011-12-12T04:20:00.002-05:00

The Court of Appeals put a lot of effort this year into deciding how to determine whether a group is a criminal street gang and whether a person is a member.

Taybron v. Commonwealth, JAN11, VaApp No. 2834-09-1

(1) If members of different local gangs copy a national gang's colors, symbols, and language this does not mean that they are both in that national gang. (2) Convictions of gang members in a different local gang which copies the symbols etc. of the same national gang as the defendant's gang copies are not enough to provide the prerequisite convictions to prove a criminal street gang.

Rushing v. Commonwealth, JUL11, VaApp No. 0723-10-1:

In proving prior criminal acts by members of the criminal street gang, in order to establish its status, (1) the crimes do not have to involve the defendant (2) nor does it have to be proven that the defendant knew the people involved.

Salcedo v. Commonwealth, JUL11, VaApp No. 1325-10-3:

The two necessary predicate criminal acts which are needed to prove a criminal street gang can be established by an officer testifying that two members of a national gang, in other States, have been convicted of requisite crimes.

Note: This seems to clearly conflict with Taybron, but it does not seem to be meant to overturn it. It appears more like it was not something seriously considered.

Johnson v. Commonwealth, AUG11, VaApp No. 2091-10-1;

(1) In order to prove that a group is a criminal street gang the prosecution must prove its members have (a) individually, or (b) as part of the group committed two or more predicate criminal acts. (2) The introduction of the defendant's prior conviction(s) can serve as evidence of the predicate offenses.

Morris v. Commonwealth, OCT11, VaApp No. 1133-10-2:

(1) There are three elements to the crime of participating in a criminal street gang: (a) the defendant must participate in or be an active member of a criminal street gang, and (b) the defendant must knowingly and willingly participate in a predicate criminal act, and (c) the act must be done (i) for the benefit of, or (ii) at the direction of, or (iii) in association with the gang. (2) Even if one is not a member of the criminal street gang committing the predicate criminal act, participating with members of the criminal street gang is acting “in association with” the gang and therefore fulfills element iii.

-------------------

Tomorrow:

Federal Cases on Pat Downs & Searches

Give That Trucker a Badge

2011-12-07T04:40:00.002-05:00

Because sometime the police need a hand.

Moments in the Hall

2011-12-06T11:31:00.001-05:00

I'm walking down the hall between courtrooms when a woman and man stop right beside me.

Woman: You the prosecutor?

Me: I'm one of them.

Woman: You John?

Me: No, I'm Ken.

Man: You the one who prosecutes in general district court?

Me: No, I don't usually prosecute misdemeanors, I prosecute felonies.

I kid you not, the guy jumped back two inches and the woman turned and immediately walked away from me.

Practice Tip for Young Defense Attorneys: What NOT to Say

2011-12-05T09:05:00.002-05:00

Okay, so I've indicted your client for 3 counts of burglary. I also know, and have disclosed to you, that the police suspect that he was involved in a dozen more, but are not now (and probably never will be) able to prove his involvement. I'm telling you that his guidelines will probably call for a sentence between 3 to 6 years. Yoiu are trying to talk me into a low-ball offer. You should not say to me

"He's a thug. Putting him in prison won't solve that whether you send him there for 6 months or 6 years."

You must understand that my knee jerk reaction is going to be "Well, then I'll go for the 6 years (or more)."

I understand you're trying to make an argument that he won't be reformed in jail and maybe you have alternatives X, Y, & Z in mind that you're going to try to sell me on next, but you've already set my state of mind and there's a high probability that you've scuttled the rest of your argument.

BUT, but, you say, I've heard well respected, long-time practitioner John Smith Esq. say the same things to you, Mr. Prosecutor, and it didn't seem to affect anything.

Well, yes he does say things like that to me. He knows when he can say it and when he cannot. He knows that the defendant, Mike Greene, has been in front of the courts 27 times in the last 5 years and that my office knows him and isn't ever going to offer him a sweet deal. Mr. Smith Esq. is just recognizing a reality and establishing his credibility with me and my office. It doesn't mean for a second that he won't fight tooth and nail for the guy in the courtroom and he definitely isn't making that statement in order to get me to lower my offer. It's more like a recognition and notice that one way or another, there's not going to be a mutually satisfactory ending to this case.

If you are a new practitioner, you need to stay away from this. Get a couple or three years under your belt. Establish your creds as someone who gets his clients the best deal he can and who tries the cases that need to be tried. Then maybe you can come into my office and engage in this kind of more sophisticated dealing with the prosecutor. Maybe . . .

If I Ever Have to go to Jail, Can Mine Have Strippers Too?

2011-12-01T10:01:00.002-05:00

Apparently, the federal jail in Miami is overrun with strippers who are being hired by law firms and sent to the jail as "legal assistants."

Y'know, back in my old days of doing criminal defense, I must admit that it never crossed my mind to use my law office to provide that sort of service for my incarcerated clients. Heck, if I had been that creative I could have tripled my client base. Sadly, I proved not to be so innovative.

Via LawofCriminalDefense

A Catholic Moment: Changes to the Mass

2011-11-28T10:14:00.008-05:00

I'm what I've heard a lot of people around here call a “Cradle Catholic.” That's 45 years of attending Mass. I was born late enough that I missed most of the major pains when the Church decided to switch to the vernacular from Latin. However, I've seen a number of changes to the Mass over the years. Some were official. When I was a year or so past my First Communion the Church changed from parishioners kneeling in a row in front of the altar and having the priest administer the Host directly to the tongue to the parishioners standing in line and having the priest pass the Host to the parishioner's hands so the parishioner could put it in his own mouth. The institution of altar boys has disappeared and with it went the ringing of the bell when the bread transubstantiated into the Body and the wine into the Blood (I think this is a shame as it marked the important moment of mass and added an element of solemnity and majesty).

Additionally, I have seen any number of changes which have been either semi-official or undertaken by parishioners. We hold hands with the people standing next to us when we say the Our Father. The older minute of silence to remember those for whom we wish to pray has changed to asking for whom we have prayers and parishioners announcing names and reasons to pray for certain individuals. When I was young the only person I remember crossing his forehead, lips, and heart before the priest read the Gospel was the priest (asking Christ to be in his mind, on his lips and in his heart). Now everybody in the church does it. And we appear to have co-opted that most Protestant of Protestant songs “Amazing Grace.” It's strange hearing a song written by an Episcopalian Preacher which was the theme of the Second Great Awakening (which strongly established the Methodist and Baptist denominations in the U.S.) being played once or twice a month at the beginning or end of a Catholic Mass.

Yesterday, the Church introduced the new English translation of the Roman Missal. Priests everywhere led their churches through new versions of the prayers that many of them had been saying their entire lives (including me). We all stumbled as we would say prayers which were almost instinctual, but aren't the form of the new translation.

The one which caught pretty much everyone at least once during the Mass was “And with your spirit.” Several times during Mass the priest says “The Lord be with you.” Ever since the first translation into English the congregation has answered “And also with you.” It's a knee jerk reaction by now. Yesterday, that answer changed to “And with your spirit.” This is a direct, and much better, translation of the Latin “Et cum spiritu tuo.” This translation obviously corrects a failure in the original translation, but it was also the one which tripped people up the most.

The rest of the translations are a mixed bag. If you've ever done any serious translation work, you know there are those who tend toward simplicity of understanding and those who cleave to the idea that translations must be as true as possible to the original even if it means adding unecessary prepositions and conjunctions¹ and using words which are almost never used in the receiving language. The original English translation was a translation which valued simplicity. The new translation values accuracy.

The Penitential Act

OLD

I confess to almighty God, and to you, my brothers and sisters,
that I have ~~sinned through my own fault~~,
in my thoughts and in my words,
in what I have done, and in what I have failed to do;
and I ask blessed Mary, ever virgin, all the Angels and Saints, and you, my brothers and sisters, to pray for me to the Lord, our God.

NEW

I confess to almighty God and to you, my brothers and sisters,
that I have greatly sinned,
in my thoughts and in my words,
in what I have done and in what I have failed to do,
through my fault, through my fault, through my most grievous fault;
therefore I ask blessed Mary ever-Virgin, all the Angels and Saints, and you, my brothers and sisters, to pray for me to the Lord our God.

This translation does a much better job of emphasizing the continuing nature of willful, sinful behavior on the part of man. I think the original may be seen as a reflection of the time when it was translated. It is an accurate, but simple translation. The new translation brings home the nature of the failing much better.

More interesting is the new translation of the Nicene Creed. I don't have time to get into that this morning and this is a busy week, so look for a discussion of that next Saturday or Sunday.

----------

¹ Prepositions and conjunctions are always a place where translators will vary because they vary in shades of meaning and use from language to language such that they often don't have exact translations and can be translated as a couple different words or even just as a comma.

UC Davis and Pepper Spray: Sound and Fury, Signifying . . .

2011-11-21T04:44:00.005-05:00

Lots of fussing about UC Davis, just like there was meant to be.

Here's the tactic: Find a public location which you know police will be forced to clear, make sure others are around to take pictures/video, interlock in a way to make it very difficult for police to move you, and wait.

It works. There is absolutely no way for the police to look good when they clear the area as they have been ordered to. Tons of videos show up on the internet.

Police are being ordered to clean out the various "Occupy" camps. Nothing too surprising there. Those among the "Occupy"ers who are dedicated or professional protesters or among the group of people who look at it as a right of passage to get arrested by the police while in college have resisted. Nothing surprising there. Videos are all over the internet and news.

Yawn.

Here's an AP video and an Al-Jazeera vid. According to the Al-Jazeera, the police were cleaning out a tent city and this group of kids decided to engage in passive resistance. The AP shows more of the occurrence than anything else I found. Note the police ordering the kids to "move." Note the kids on the sidelines screaming at the resisters to "not move." Note the police trying to physically separate the kids (unsuccesfully). Note the officers being extremely obvious about their plan to use pepper spray. Note the yells "protect yourself" and "close your eyes." note the kids on the ground actually taking steps to protect themselves so they won't get a face full of spray (hoods and collars up, heads down).

And here's a video which starts even earlier, in which the police give clear warning that they were going to use spray before doing it.

In the end, the police cleared the sidewalk and the protesters got their moment of glory for standing up to the cops. They also got something to put out there to justify themselves.

This is not Kent State. This is a pre-scripted play.

Lying to a Bad Judge?

2011-11-20T18:06:00.001-05:00

Everyone who has practiced criminal law has come across some variation of this scenario: A defense attorney practice regularly in Pitcairn County; representing at least 2 defendants in felony court every week. Judge Smith has been the judge in Pitcairn County for the last 20 years; he is probably going to be there another 20 years.

The problem is that before every trial, Judge Smith calls the defense attorney and prosecutor into chambers and says the following:

Let's cut to the chase. Is this guy guilty?

Of course the prosecutor says "Yes." What answer can the defense attorney give?

The two answers which pop into mind are "Judge, I cannot answer that question." or "He's innocent, judge." The second has the disadvantage of quickly turning the defense attorney into a liar in the judge's eyes as he proclaims the innocence of each and every client and overwhelming evidence in several cases make it obvious that he could not have thought they were actually innocent. Yes they're all "innocent until proven guilty", but Judge Smith ain't gonna buy that. So, the default would be the first answer. Giving that answer, the defense attorney neither misleads the judge nor violates ethic rules.

BUT, what if the defense attorney knows his client is innocent and knows that if he states his client is innocent that the judge will be significantly rougher on the prosecution, enforce the rules of evidence more strictly, and be much more likely to find the defendant "not guilty."?

Question inspired by Case Western Reserve Law.

Would You Want CSI / Law and Order / Bones / NCIS in Your Town?

2011-11-18T10:38:00.001-05:00

Sure, at first thought it seems like a great idea. You could have an elite investigative unit located in your town. I mean, c'mon your local police investigators have to track down leads, interview dozens of people, send important evidence to a state lab 6 hours down the road and wait 4 - 6 months for the analysis to come back. Sometimes these guys take months, maybe even years, to solve cases. Compare that to Criminal Minds wherein the team drops into town and solves multiple murders in a matter of days. These elite teams have computer savants, people capable of solving crimes using math, and amazing labs in the basement (with neon lights). What could possibly be the downside?

Well, the worst part would have to be the skyrocketing homicide rate. Every week there would be someone killed (for at least the traditional 22 weeks of an American television series). Of course, every one of them would be solved quickly, but if you're in Lebanon, Virginia (population approximately 3,500) your homicide rate would be 629 deaths per 100,000. Comparatively, the highest homicide rate in the country has been New Orleans at 52 per 100,000. Somehow, that doesn't strike me as sustainable.

Almost as bad would be the 175% tax rates which would be needed to pay for those amazing labs. After all, if you are going to have your very own lab, which is equipped with the most very newest of every kind of analytical equipment and enough staff so that every bit of evidence can be analyzed the same day it is found, it don't come cheap.

However, there is an option on the cheap: psych. Now, you'd still get the alarmingly high homicide rates, but all the expensive stuff (lab, staff, etc.) just isn't there. Of course, you have to put with an immature whacko bouncing around claiming he was psychic, but who cares since he would be solving every crime in sight at an affordable rate. And he'd be funner to be around than the knock-off over at CBS (BTW, does anybody watch that show?).

Discussing the GPS on a Car Without a Warrant Case

2011-11-13T15:05:00.001-05:00

The first part of this video discusses the recent argument in the Supreme Court of the United States over whether a gps tracking device can be placed on a car without a warrant.

This We'll Defend

2011-11-10T21:04:00.000-05:00

The Navy keeps enemies from our shores. The Marines provide flash and verve. The Air Force lives in nice dorms and eats really good chow.

The Army? It just wins wars.

There's been a standing joke around my office the last week. Through all its variations it has basically been, "Ken, thank you for your service. I'm going to honor your service by not working Friday." It's all in good humor, but it has set me to thinking about what would honor me and all the other veterans. My conclusion?

SERVE.

If you are young enough and fit enough, serve your country and your fellow citizens.

But it's 4 years! Yes, and it may seem like an eternity when you are 18-20. It's not.

But, I don't believe in violence! Fine. Become a corpsman or medic or a chaplain's aid.

But I don't want to go to Afghanistan or Iraq or Libya! Okay. Join the Coast Guard.

But it will sidetrack me from my path toward maximum earning potential, could put me at risk, my parents will fear for me, and my peers will think there is something wrong with me. Ah, now we come to the crux of the matter. Well, okay, sure, you can just leave the heavy lifting to those whom you deem far enough below your social status. After all their lives and families obviously aren't as important as yours. Don't sweat it. A sense of duty to others really won't be something you'll need in your life anyway.

Look, I realize that most won't serve and I've met any number of Veterans who are troubled and troubling. Still, when I look at someone and that person has served his or her value as a person rises in my eyes. I cannot help but see someone who belonged to something greater than himself and who stood between me and mine and harsher realities in the world. I thank all of you who have served; all of you who are serving; and all of you who will stand in the future as part of the unending line that stands between the cruel realities of a world where life is nasty, brutish, and short and the gibbering masses, who speak of rights they have earned only by capricious birth. Some will speak hollow praises, but if you well and truly do your job the great majority will never understand what you are sparing them from. You serve - you choose to serve - so that the rest of America can remain in blissful ignorance of what would happen if you were not there.

This We'll Defend.

New Blog Layout

2011-11-09T16:52:00.000-05:00

So, yesterday I was piddling around with some minor parts of the blog and accidently nuked it. Then I spent the rest of the day trying to put together a new layout. It took a while, but now I have most of the blog working. The only things left to fix are 1) I need to add back in links to other blogs (sorry if you get shorted - my list got slagged with the blog) and 2) I need to figure out how to get the featured posts entered and rotating like they do in the example here. If anyone can figure the second out drop me a line.

I don't like the color scheme and I'll probably end up working on that over the next little bit as I move the graphics from someone else's site to mine. I do like the more modern look. However, I am concerned that it may be slow. If anyone is having major problems let me know. The only reason I spent all the time trying to get this page up to snuff is that I like the slideshow (if I can ever get it working).

Anyway, hopefully I won't back to the bad old days when I rewrote the site every two weeks or so - but I make no promises. ;-)

Why I Hate Practice Books (And Mopeds)

2011-11-07T03:51:00.013-05:00

If you practice criminal law, there is invariably a set of books you cannot survive without. Chief among these are the easy to carry summaries of law which you can take with you into a courtroom (where there tends to be no wifi or even internet for phones). A typical form of these has most of the criminal and traffic laws in one or two books and, under each code section, summaries of cases having to do with each code section. Often - especially in misdemeanor courts where there is a large docket and things have to move quickly - all anyone does is read these two or three sentence blurbs about cases and rely on the summary the publisher has provided.

The problem is, the publishers get things wrong. A big problem is that the publishers seem to have a hard time figuring out that a case they have put in their books was overruled a few years later. They just keep putting them in the books as they are republished year after year. This seems particularly true when the law is changed by an act of the legislature.¹ We recently had this come up in a case involving mopeds and licenses.

To begin, let me set out the framework. Under Virginia law, if someone's license is suspended generally she can still drive a moped because it is not a "motor vehicle." In Virginia's Traffic Code (Title 46.2) there is a specific exception under the general driving suspended law, Va. Code 46.2-301(B):

For the purposes of this section, the phrase "motor vehicle or any self-propelled machinery or equipment" shall not include mopeds.

A moped for that section is defined in Va. Code 46.2-100:

"Motor Vehicle" . . . For the purposes of this title, any device herein defined as . . . moped shall be deemed not to be a motor vehicle.

"Moped" means every vehicle that travels on not more than three wheels in contact with the ground that has (i) a seat that is no less than 24 inches in height, measured from the middle of the seat perpendicular to the ground and (ii) a gasoline, electric, or hybrid motor that displaces less than 50 cubic centimeters. For purposes of this title, a moped shall be a motorcycle when operated at speeds in excess of 35 miles per hour. For purposes of Chapter 8 (§ 46.2-800 et seq.), a moped shall be a vehicle while operated on a highway.

However, a person can have her license suspended/revoked for driving under the influence of intoxicants (DUI or DUID). Driving under the influence of intoxicants has an "article" under the Virginia Criminal Code (Title 18.2, Article 2) which goes from section 18.2-266 to section 18.2-273. Included in this article are sections 18.2-271 and 18.2-272 which, respectively, take away the right to drive after conviction for driving intoxicated and provide for punishment if caught driving after the license has been taken for driving intoxicated.

Prior to 2005, the statute which makes driving under the influence of intoxicants illegal specifically included mopeds:

For the purposes of this section, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.

In 2002 the Charlottesville Circuit Court (felony trial court) made a well reasoned decision that because 18.2-266 included mopeds only in "this section" and 18.2-6 states:

As used in this title:
. . .
The words "motor vehicle," "semitrailer," "trailer" and "vehicle" shall have the respective meanings assigned to them by § 46.2-100.

that a person couldn't be found in violation of driving after being suspended/revoked for DUI under 18.2-272 as long as long as she was driving a moped. Archer v. Fink, 57 Va. Cir. 354 (2002). Thereafter, LexisNexis put a blurb about the case under 18.2-272 in its "Police, Crime and Offenses and Motor Vehicle Laws of Virginia":

A "moped" is not a "motor vehicle" under 18.2-272.

All of this was just fine until 2005.

In 2005 the Virginia General Assembly changed 18.2-266, via House Bill 2786:

For the purposes of this ~~section~~ article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.

So, it's now illegal to drive a moped after having been convicted of DUI because 18.2-266 and 18.2-272 are both in Article 2 of Title 18.2.

Fine, the law has changed. What am I fussing about? LexisNexis never took the case the General Assembly overruled out of their book. Last week someone looked in that book and saw a blurb which said people suspended for DUI could drive a moped legally. There was a big fuss in court until the attorneys were able to get somewhere they could actually do some research and find out that the law had changed 6 years earlier.

Grrrrrrr . . .

-------------------
¹ This is not unique to this kind of book. I first noticed this in Shepard's and West's citation checks, which catch 80% of caselaw changes, but few legislative changes which invalidate a case.

Rock the Mo

2011-11-04T11:10:00.002-04:00

In honor of Movember, I offer this tribute:

The Greatest Moustaches In History

Indonesian Police Part 2

2011-11-02T16:52:00.001-04:00

Apparently, music is highly regarded in the Indonesian police forces:

Sometimes I wish I had a universal translator.

Sometimes it Gets Boring When You are an Officer in Indonesia

2011-11-02T16:43:00.004-04:00

I guess police duty gets boring some times:

I kept waiting for the guy sitting there, concentrating on his cell phone, to reach over and knock his partner silly. He clearly didn't want anything to do with this.

Don't Mess With Indian Cops

2011-10-31T12:24:00.001-04:00

Eat your heart out Charles Bronson and Clint Eastwood. Ya'll ain't got nothing on this dude:

Translation, anyone?

Those Are Cameras in Those Black Bubbles on the Ceiling

2011-10-29T19:27:00.003-04:00

Whenever you go into any kind of store nowadays you see black or silver bubbles on the ceiling. For those of you who don't know, inside those bubbles are cameras thru which store security watches potential shoplifters (and employees). I say "for those of you who don't know" because there are obviously people too dumb to realize that their every move is being watched as they stuff merchandise in their coats and down their pants. I've seen any number of tapes of this in cases I've been involved in. Here's a typical video of the type which I found on YouTube (two young punks almost too dumb to breathe filmed trying to steal everything that isn't nailed down):

Now here's a guy who knows he's being watched by the camera and who decided to play a prank on some people he used to work with (don't try this at home kiddies):

Cited in Wikipedia

2011-10-24T16:03:00.002-04:00

You know you've hit the big time when you become a primary source for Wikipedia (citation #6).

I Wish to Report a Burglary

2011-10-24T14:45:00.000-04:00

The Virginia State Bar v. Free Speech

2011-10-20T19:55:00.006-04:00

When I became a lawyer I don't recall being told that I lost my 1st Amendment right to freedom of speech. However, it appears that the Virginia Bar has decided that all lawyers in Virginia have forfeited that right when it comes to blogging about matters that are already a matter of public record.

To be specific, the VSB has ruled that Horace Hunter, a Virginia lawyer in Richmond, must take all posts from his blog down which refer to that which has happened to his clients in open court and is in the public record, unless he has permission from each client. These things can be written about by every other citizen in the United States, just not Horace. Why not? Because he is the client's attorney.

This is part of a 2 issue argument which Horace has been having with the Bar. First, they wanted him to put a disclaimer on his blog which stated that the results he was talking about were not guarantees of similar results in other cases. On this, as much as I respect Horace's stand on principle, I agree with the Bar. I stated as much back in May when I first discussed this.

However, the second issue seems to have morphed in to a constitution breaker: the Bar insists that Horace has been shorn of his 1st Amendment right to free speech by becoming a lawyer and taking on a client. To be fair, this is a possible reading of the ethics rule which the Bar is enforcing against Horace:

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

So, if the Bar can show in each case that the information written about by Horace was embarrassing or detrimental to the individual written about, then it might have a case (on a post by post basis). The implications in the Virginia Lawyers Weekly article seems to be that there weren't any demonstrable detrimental affect and that any embarrassment from the posts seems to have been caused by the Bar in the process of its investigation (which is an interesting lack of clean hands on the Bar's part). Nevertheless, the Bar can fall back on the potentialities and subjective standards written into the ethics rule. "Would be" and "would be likely to be" are incredibly broad turns of phrase. If Ethics Rule 1.6 trumps the Constitution the Bar is free to interpret that language any way it wants to and Horace just has to live with it (and the rest of us do too).

So, what's the Constitution say about all of this? Well, the pertinent part is the 1st Amendment, as imposed on the States through the 14th Amendment. I'm not anywhere near being an expert on this area of the law, but I'm going to offer up some fairly basic analysis through the lens of what I remember from ConLaw back at W&L.

First of all let's establish a three facts. 1) The Virginia State Bar is a State actor. Its own website proclaims it "An agency of the Supreme Court of Virginia." Of course, the Supreme Court of Virginia is a part of the Commonwealth's government per Article VI of the Virginia Constitution. 2) The important State interest is to protect confidential communications between an accused and her attorney. 3) Talking about what happens in court involves all sorts of political speech. After all, this is the place where the laws of the legislature, enforcement by the executive, and interpretation by the courts all meet. It is, as the saying goes, where the rubber meets the road. I'm not sure its political nature makes much difference in determining whether the government can quash it, but if it does it should make it harder for a government actor to do so.

Now, let's run this through the two tests I recall from law school.

The first test I recall is strict scrutiny. Under this test, a government actor seeking to halt free expression must have 1) a compelling government interest to halt the free expression which is enforced by a policy 2) narrowly tailored to achieve the governmental goal and which is 3) the least restrictive means of achieving that goal.

The compelling governmental interest here is to promote the operation of the judicial system by insuring that communications between a defendant and his attorney remain confidential. The government has no valid interest in keeping the activities which occur in open court from becoming public. In fact, this has been held so important that the US Supreme Court reversed a case when a person could not watch voir dire because there were so many potential jurors that there was no space for the person in the courtroom. Presley v. Georgia , JAN10, USSC No. 09-5270.

Keeping in mind the compelling governmental interest of protecting confidential communication between clients and attorneys, the next question becomes, is forbidding an attorney from writing about what happens in open court with his client narrowly tailored to protect confidential communication between the client and the attorney. It seems not. This is not a requirement that the attorney not speak of things told in confidence. This is a requirement that the attorney not speak of things done in an arena that is mandated to be open. US Const. Amend. VI.

As well, forbidding an attorney from discussing matters concerning his client which occurred in open court and are in the court's open record is not the least restrictive way of protecting confidential communications between the client and his attorney. The least restrictive way is to simply forbid the attorney from revealing confidential communications between himself and his client.

Beyond the strict scrutiny test, governmental actors can also emplace time, place, and manner regulations. Whether these are valid depends on a four part test. 1) Is the regulation content neutral? 2) Does the government have a significant interest? 3) Does it leave ample alternatives? 4) Is the regulation narrowly tailored?

In this case, the regulation is not content neutral. It forbids specific actors from discussing specific matters. Attorneys cannot discuss their clients' cases as they took place in the courtroom.

The government does have a significant interest in protecting the privacy of confidential communication between a client and his attorney.

There are no alternatives allowed here. If Horace cannot write about these cases on his blog, he cannot write about them in the newspaper or talk about them on TV or even get on a soap box in the park and speak of them to passers-by.

The regulation is not narrowly tailored. It forbids much communication which is outside the realm of the private client-attorney communication which it has an interest in protecting and forbids it in all places.

----------

Look, I never published the names of any clients on this blog. In fact, I usually masked where things happened and changed facts around in an attempt to talk about what was interesting about a case without attaching the post to a particular client. In fact, you'll notice that I seldom use actual place names anymore (usually substituting mythical Pitcairn County / City). I seldom name other attorney or judges in here and when I do I usually do it in order to praise them (I'd say always, but somebody would find some post I've forgotten from 7 years ago and make me a liar).

This is good policy. However, requiring it is not good constitutional law. I may not like the way Horace publishes matters on his blog. I may even think it counterproductive. However, there is a big difference between speech which is distasteful and/or counterproductive and speech which is so contrary to a necessary public/governmental interest that it should be suppressed by a government actor.

I wish Horace luck in his further defense of his right to free speech.

-------------------
[addendum] Scott, from Simple Justice, has written a post addressing this and sent me a link to the article in the Richmond Times Dispatch. Scott agrees with the Bar. Respectfully, Scott is wrong. Not identifying one's clients and talking about what happened to them in open court shows respect, a sense of fair play, common decency, and is a good behavioral policy. It is not a compelling governmental interest such that free speech should be suppressed.

And, for anyone thinking that this isn't about free speech concerning matters already entirely in the public domain (not confidences between a client and her attorney), here are the pertinent quotes from the Richmond Times Dispatch:

Can newspapers report on criminal trials? she asked. "Yes, absolutely, they can. Can (Hunter) then go back and report on his own cases? No, he cannot — absolutely not. Not without his client's consent."

"It doesn't matter if the information (he) reports is already in the public domain."

The Bar is, by its own counsel, admitting that it is suppressing the speech of lawyers concerning matters in the public domain. It can't be much clearer than that.

Is the Bar's position good behavioral policy? Yes. Is it good constitutional policy? Absolutely not. A governmental agency should never be able to suppress speech solely on the grounds that it disfavors that speech.

The Monster Mash

2011-10-20T13:31:00.004-04:00

Gotta love transcripts:

Mr. Lammers: "Your Honor, the defendant, John Smith, is monster-ably a danger to the citizens of Pitcairn County.

However, I will say that the transcript is equal opportunity. Just a little later there was this from the defense attorney's argument:

Defense Attorney: "Judge, even people who are convicted of actual burglaries don't get that kind of sentence. This is only an attempt, an incurred offense."

Who Prosecutes a Misdemeanor in Virginia?

2011-10-19T04:08:00.044-04:00

In Virginia a Commonwealth Attorney is elected in each county or city. This is roughly the equivalent of a District Attorney or State Attorney in other States (except we're in a Commonwealth, so we're cooler). The duties of a Commonwealth Attorney, and his deputies, are laid out in Virginia Code § 15.2-1627(B):

The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.

So, the basic job of a Commonwealth Attorney is to prosecute felonies. He is also tasked by law with doing several civil actions (previously discussed here). However, it is entirely discretionary whether a Commonwealth Attorney's office will handle misdemeanors. In fact, the staffing of a Commonwealth Attorney's office is based entirely on the felony caseload; there is absolutely no credit given for handling misdemeanors (see Compensation Board Staffing Criteria). So, what happens to all those misdemeanors the Commonwealth Attorney is not being paid to prosecute?

Well, some Commonwealth Attorneys are kind enough to pick up these cases anyway. In other localities the county or city, recognizing the burden put on the Commonwealth's Office, will provide extra money to the office to compensate for the extra work. This can either come in the form of extra pay for each assistant or paying a particular assistant to handle the misdemeanors. Another option is for the locality to hire its own prosecutor.

Localities which hire their own misdemeanor prosecutors can be counties, cities, or towns (towns incorporate in Virginia, but don't have their own Commonwealth Attorney). This prosecutor is either the county attorney or the city or town attorney (the attorneys who usually do their civil work). However, in order for the locality's attorney to do this work the Commonwealth Attorney must first approve them and there are some differences in the cases they are allowed to handle.

§ 15.2-1542(B) The county attorney may prosecute violations of the Uniform Statewide Building Code, the Statewide Fire Prevention Code and all other ordinances as may be agreed upon with the attorney for the Commonwealth. Such attorney shall be accountable to the governing body in the performance of his duties.

15.2-1542(C) City and town attorneys, if so authorized by their local governing bodies, and with the concurrence of the attorney for the Commonwealth for the locality, may prosecute criminal cases charging either the violation of city or town ordinances, or the commission of misdemeanors within the city or town, notwithstanding the provisions of § 15.2-1627.

So, attorneys for counties as well as cities and towns can, with the approval of the Commonwealth Attorney, prosecute ordinances. Ordinances are local laws which can be put into place by localities with the permission of Virginia's General Assembly (Virginia is a strong Dillon Rule State).

The strange difference is that city and town attorneys can prosecute misdemeanors which occur within their localities while county attorneys are not allowed to do so. A misdemeanor does not have to be a local law the General Assembly has allowed the locality to enact. A misdemeanor is any offense in Virginia in which the punishment is 12 months or less. So, a city or town attorney can prosecute ordinances and state laws while a county attorney can only prosecute ordinances.

The next question becomes, how do any of these attorneys get permission to prosecute from the Commonwealth Attorney? My best opinion is that the Commonwealth should send a blanket statement to the local court stating that she will not have her office prosecuting misdemeanors from the town of Pitcairn and that she agrees that for the next 12 months the town attorney of Pitcairn can prosecute any and all misdemeanors, whether by ordinance or under State law, which occur within the boundaries of the town of Pitcairn. Without such a statement, the defendant in any case being prosecuted by a count, city or town attorney would be able to object (after the first witness has been called and jeopardy has attached) that there has been no approval by the Commonwealth Attorney for the local attorney to prosecute his client.

It would be an interesting argument. I don't know if it would often work (I suspect the officer could handle his own case in most minor misdemeanors without the attorney), but it would make for an interesting argument.

Rape by Lie: Seduction

2011-10-12T10:06:00.001-04:00

Rape by fraud is not a new crime. However, in the past it carried a different name: Seduction. It also had at least one extra condition.

To begin with, under the common law seduction was not a crime. 57 Corpus Juris: Seduction 150. However, apparently a great number of states found this intolerable under certain circumstances and passed statutes making it into one.

While the actual crime varied from state to state (depending on how the statute was written), there were basically three elements to seduction. First, the victim had to be female. Second, the woman must have been of chaste character when convinced to have sex. Chaste character basically meant that the woman had never voluntarily had sex out of wedlock. Seduction 162. The third element of the crime of seduction was the use of "artifice,deception, flattery, promise, or like inducement" in order to gain the confidence of the woman in order to get her to submit to the seducer. Seduction 155. The deception which seems to have been most common? A promise to marry her.

So, why does this crime no longer exist in any statutory scheme? I believe the primary reason for this is fairly obvious: the changing role and perceptions of women in society. At a primordial level, the crime of seduction is based in a patriarchal worldview in which women are seen as a form of property. Under this system, the value of that property was perceived to change drastically after it has been despoiled. To state this in a more crass analogy, we all know that a new car loses a great deal of its value once it's driven off the lot. Basically, the crime of seduction reduced the value of the woman to both the seller (her father) and to any potential buyers (husbands) .

Of course, this kind of primitive thought has been non-viable for quite some time in the U.S. However, it does not seem like the courts and legislatures were ready to abandon the framework entirely. Instead, the gloss put on seduction was to shift the parties so that the seller became the woman herself rather than her father. Thus, she has an interest in preserving the value in herself of her chastity so that she could offer it as a boon only available to the eventual buyer (husband). The cases which probably indicate this gloss most clearly are those declaring that a divorced woman was just as chaste as a woman who had never been married.

In the end, all of this went away. The worldview that saw a woman's primary purpose in life as getting married and one of her major bargaining chips toward that goal as her chastity seems consigned to the ash heap of history. With it went the crime of seduction. In its stead, the general common law rule of caveat emptor has reasserted itself (for both sexes). This is probably best expressed in People v. Evans, 1975,379 N.Y.S.2d 912:

Seduction, on the other hand, may be freely indulged in by both sexes. It involves allurement, enticement, or persuasion, to overcome initial unwillingness or resistance. Its ends may be achieved by fair means or foul, but seduction eschews the crudities of force and threats.

Of course, Scott pointed out to me in the previous post that the law in New York changed because of this case, but it's still a valid explanation of the state of the common law for those of us in states which have not adopted some sort of rape by lie statute.

Rape by Lie in the United States

2011-10-03T18:18:00.101-04:00

The videos yesterday made the claim that in the United States there are laws in some States similar to the rape by deceit charge in Israel. I did a bit of hunting to see if this was true.

To begin, I looked in Virginia. The Virginia rape statute has the basic three conditions which traditionally make up rape

§ 18.2-61. Rape.

A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.

No rape by fraud there.

I dug around in some other States and found rape by fraud in Tennessee.

39-13-503. Rape.

(a) Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:

. . . . .

(4) The sexual penetration is accomplished by fraud.

I also found a limited version of this in California.

261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

. . . . .

(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

New York has a statute which seems to follow the same legal model.

§ 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when:
. . . . .
3. He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

To address these in reverse order of presentation, the New York law seems to be limited (defined down) by the courts.

The legislation was designed to address the so-called date rape or acquaintance rape situations where there might be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent, and a reasonable person in the actor's situation would understand that the victim was expressing a lack of consent

People v. Cummings, 2011, 916 N.Y.S.2d 432.

So, it doesn't seem to cover rape by fraud.

The California statute seems to be a remnant from a legal thread which used to be part of the law in many States. I saw references to former laws in Arizona and North Carolina which had the same thing. Apparently, there was a big problem in times gone by with men trying to convince women that they were their husbands in order to have sex with them.

The Tennessee statute is the one which is the most straight forward as a rape by fraud statute. However, there only seem to be two cases where the appellate courts address this. In each, the type of fraud is similar to that which is in the the older legal thread. In each, the lie told was such that the person having sex thought they were having sex with an entirely different physical person than the one with whom they were actually having sex with. In State v. Mitchell, 1999, C.C.A. No. 01C01-9612-CR-00502, a man convinced women he was their boyfriend and that he had a fantasy that they would have sex while she was blindfolded. In State v. Brigman, 2003, C.C.A. No. M2002-00461-CCA-R3-CD, a man convinced young men that if they were blindfolded a woman would come and perform oral sex on the young male, but did it himself. Both of these seem to indicate that conviction for rape by fraud is a difficult case to prosecute which would only occur in incredibly unusual situations.

Rape by Lie

2011-10-02T18:09:00.007-04:00

Last week I was wandering around the web when I ran across a meme from about a year ago in which people went nuts over a rape conviction in Israel. The reason everyone was up in arms was because the circumstances were such that most people would not think of it as rape.

A woman and man met. She was Isreali and he said he was too. They had sex. Later, she found out that he was actually Palestinian (and married). Based on his lie about his ethnicity, he was convicted of rape.

As you might imagine, the Internet was filled with cries of outrage and disdain. Here are three YT videos commenting on this conviction. The first is outrage, the second makes fun of the decision, and the third attempts to justify it.

Five Signs

2011-09-30T14:53:00.000-04:00

If You Are Stolen . . .

2011-09-27T12:17:00.000-04:00

Why Aren't I a Law Professor?

2011-09-26T05:41:00.004-04:00

I got asked yesterday for about the 900th time, "Why aren't you a law professor?" After all, I've been commenting on law and criminal practice since 2003 on CrimLaw, I've had a couple articles published, and I'm the guy who goes around our Circuit lecturing other lawyers about changes in case law and statutes. The next logical step would to become a law professor.

OK. Well the first (and primary) reason that I have to admit to is, well, nobody has asked. I mean, I know I'd be an awesome professor; you know I'd be a stupendous professor. The problem is that nobody out there hiring knows it. It's a terrible oversight on their part and shakes my confidence in the omniscience of law school deans, but it is a fact.

The second reason is that, while I love research and teaching would be great, I've always been drawn toward the practical. I like mixing it up at the office and in the courtroom. I have seen professors who do some practical work. At Washington & Lee Law, Professor Groot did an excellent job of teaching and worked on death penalty cases. However, I wonder whether a new professor would have the latitude that a well established, significant professor does.

If I was offered a position teaching criminal law, procedure, evidence, &cetera I'd have to give it very serious consideration (great, now I'm giving my Boss ideas on how to get rid of me). It would be a great adventure (and I hear the pay is good), but right now I just don't see myself flooding every law school from here to Oregon with copies of my resume. So, don't get your hopes up too high defense attorneys, I think you're stuck with me for the foreseeable future. ;-)

Fear the Great Electronic Menace

2011-09-25T03:38:00.007-04:00

Lately, I've noticed a lot of attempts to scare attorneys about the use of online resources. One form of this comes from "professionals" who make their living by telling attorneys how much danger they are in and how they can be saved. Telling someone not to tape their password to the monitor isn't exactly rocket surgery. I also like how they keep telling people to make their passwords longer and longer. Passwords are like padlocks. They keep the casual thief from getting in, but they aren't going to keep anyone serious out. They can accomplish that with six characters. If you're expanding your password to try and keep ahead of better and better password crackers you are going to be using a fifty character password in five years.

Another interesting point of fear mongering is coming from lawyers themselves. For instance, the ABA has come out with the following ethics opinion:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Okay, the part about an employer communicating with his attorney thru his employer's computer or network is common sense and any attorney who knowingly did that might be beyond an ethical violation and into malpractice. However, the really disturbing part of this is the possibility of infinite expansion. What exactly is "significant" risk? The comment explains that this opinion can cover all sorts of situations.

The confidentiality of electronic communications between a lawyer and client may be jeopardized in other settings as well. Third parties may have access to attorney-client e-mails when the client receives or sends e-mails via a public computer, such as a library or hotel computer, or via a borrowed computer. Third parties also may be able to access confidential communications when the client uses a computer or other device available to others, such as when a client in a matrimonial dispute uses a home computer to which other family members have access.

I've also seen this sort of thing in CLE's. Earlier this year, I was at a CLE wherein the ethics discussion revolved around whether it was unethical to store files "in the cloud" (a trendy way of saying "on servers external from your work or residence"). One lawyer posited that you couldn't do it without giving the client notice and explaining possible problems.

This is a fear reaction because something is new. Lawyers hate and fear the new, Now, I know that none of this is really new, but lawyers are always behind the curve when it comes to thing like this. I know a number of lawyers who don't understand or use email and to whom storage of documents on the web is mind boggling. They don't greet such things with open arms. They ignore them and when forced to address them do so as little as possible. Fears such as this bring out lawyers with too much time on their hands who react as lawyers always try to: they rule it to death.

Think about it this way. How often do lawyers warn their clients that the law office has windows and doors which could be broken open and that their files are on paper. We don't do that because it is collateral to anything the attorney is supposed to be talking to the client about and it would be silly. Yes, someone could break into the office and burn or steal files, but it's remote enough of a possibility that if the attorney is taking reasonable precautions (locking the doors and windows of his office) no one is going to talk to the client about it. The same thing applies when storing client files online with a reputable company such as Amazon or Google, behind a password. In fact, those files are probably more secure than a paper file in a cabinet in the office. And yet, I find myself in CLE's being warned that I should tell a client about the dangers of online storage.

As for email communications, yes, in appropriate situations a warning to the client is appropriate. However, I think it is putting too fine a point on it to specifically point this out for email. It's true for any kind of communication in sensitive situations. Planning to sue your boss? Don't do any communications which can fall into the company's hands. This has always been true. The client shouldn't use the company phone or voice mail or talk to another employee about it or do anything in regards to the case at work. Are we getting ethics opinions about this sort of stuff? No, because it doesn't involve computers.

Use the same common sense with computers that are used everywhere else and you need not worry overmuch. I know the fear mongering won't stop, but don't listen to it too much.

CrimLaw News From Around the Globe

2011-09-15T09:22:00.000-04:00

1) A puff piece on Chesterfield County's drug court. Drug courts can run the gamut from extremely well run to just another way to save money by not sending people to prison. I haven't practiced in Chesterfield for over 5 years now, but it was one of the better ones I had seen as a defense attorney.

2) Wonderful. Drug companies are paying doctors oodles upon oodles of money. Of course, that has nothing to do with the rampant overprescribing and prescription drug abuse. Nothing at all.

3) If you dump your first three attorneys, you run the risk that the judge might decide to let you represent yourself.

4) Oops. Gotta follow the correct legal procedures if you want all that lucre from the traffic cams.

5) I'm Gumby Dang It! Now, give me all the money in the till.

6) If you show up an hour late to your murder trial, the judge might look askance at that.

7) Really? You can taser people if you have the right religious beliefs? Father O'Reilly hasn't keyed us in to that aspect of religion at Our Lady of the Mountains.

8) If you get subpoenas and send threat letters without the judge's permission, he might become a little irked.

9) The plural of moose is MOOSE. And it's still funny that they are getting drunk on apples.

Valuing Electronic Content that is Illegally Converted

2011-09-13T10:24:00.001-04:00

So, the police find a computer with data or programs which can be proven to have been obtained in contravention of Virginian criminal law. How is the value of the data or programs to be proven?

Of course, the easiest way to prove value would be to use the price the data or program is sold for on the market. Data includes songs, videos, ebooks, etc. A song is probably worth .99$ because that's what it would cost to buy it on iTunes; a movie might be worth $2.99 if that was the price on Amazon; an ebook at Baen could be $6.00. The cost of a program would also be determined in this manner. The most commonly pirated program in the world (outside of Windows) has probably been Photoshop. If someone has an illegal copy of Photoshop its value can be easily found ($549.00). Similarly, value for programs such as Word, StarCraft II, or Final Cut Pro would be fairly easy to find.

The place where difficulties could arise here is in the valuation of older versions of a software title which are no longer sold or in inferior copies of an original. If someone downloads a copy of Word which is from five years ago, does it actually have a value? It's no longer on the market and, with free word processors such as Lotus Symphony, Abiword, and
Open Office, the prosecution would be hard pressed to show that but for the illegal download the company would have sold a single copy of its current program. Of course, this does not mean that the converted program has no value; it merely means that the indeterminate value would mean that a misdemeanor would have to be charged instead of a felony.

Similarly, if a song is .79$ at Amazon, but the illegally downloaded copy has half the kilobytes per second, does that mean the value of the copy is half the cost at Amazon? Perhaps. However, I think that this would probably be an affirmative defense after the prosecution has shown the usual cost of the piece of data on the fair market. As well, it usually wouldn't be worth the effort on the part of the defense. Unless the prosecution could prove that a large number of songs were downloaded as part of a single file (zip, torrent, etc) almost all data downloaded (songs, movies, ebooks) will not individually rise to felony level. Unless there is a statute allowing the aggregation of separate thefts each of the data items converted will be a separate misdemeanor whether the value is .79$ or .40$. Now, 432 misdemeanor electronic fraud cases (one for each song or video) would be nothing to sneeze at, but it would probably end up with less of a punishment than 10 felony frauds and be more painful for the prosecution to try.

Kentucky Pride & a Superbowl Ad

2011-09-11T20:01:00.000-04:00

Dig deep in your pockets and give 'til it hurts.

Valuation of a Stolen Item. What if There is No Price Tag?

2011-09-06T17:06:00.001-04:00

While sale price is the usual value placed on items, things which are stolen aren't always for sale. So, how do you determine the value to be placed on such items when determining whether a theft should be a misdemeanor (less than $200) or a felony ($200 or more)?

The answer which most courts would reach for would be fair market value. The question then becomes: How do you determine fair market value?

One manner which the courts use a lot is to allow the owner to testify as to value. Generally, the court will presume this is correct. However, this presumption is less sturdy than that of a price tag. The reason for this is obvious. That old, barely running car the victim couldn't sell can suddenly become a classic Chevy worth $20,000. This is a place where a defense attorney can really earn his pay.

Another way to establish market value is to show the price that its equivalent sells for on a resale market. There are a couple ways this can be done. The first is to use some sort of authoritative publication to establish value. The most commonly used of these is the Blue Book, which is used to establish the value of cars. However, there are a number of publications which can be used similarly for comic books, coins, stamps, etc. The second is to bring someone to court who can testify as to resale value. Thus, if someone stole a china set from 1893 a local antique dealer could come to court to testify as to its resale value. The only real difficulty with either method is establishing the condition of the item being evaluated. Here, again, the testimony of the victim is going to be key (assuming the stolen item wasn't recovered).

Sometimes, fair market value is not available. An example of this in Virginia is the case in which the appellate court basically stated that there is no fair market value for a catalytic converter because there is no resale market for catalytic converters in Virginia. In this sort of case, the way that value would most likely be established would be to take the value at time of purchase and subtract wastage from it for each year it has been possessed to determine value. You could probably use the same sort of devaluation found in tax codes for property value over a period of years. I've never had to prove property value in this manner and hopefully never will.

Tomorrow: Valuing Stolen Computer Data

Valuing a Stolen Item: The Price Tag

2011-09-05T14:29:00.000-04:00

About a week ago, WindyPundit asked how value is proven in theft cases. It's an important question because the value of an item taken is usually determinative as to whether the accused faces a misdemeanor or felony charge.¹ For instance, in Virginia if an item stolen is worth $200 or more the accused faces grand larceny charges and up to 20 years in prison. If the stolen item was worth $199.99, or less, the accused will be charged with a misdemeanor carrying a maximum penalty of 12 months in jail.

When dealing with something stolen that a business sells, the price the business sells the item for is the value assigned to the item. This has the virtue of being simple to ascertain. On occasion, defendants will argue that the value should be that of the costs the business has in the item and nothing more. However, this founders on the shoals of a couple difficulties.

To begin with, actual costs of acquisition or production are hard to determine. If someone steals a shirt from a store at the mall, it's easy to determine the shirt is priced at $40 and that it was bought from the wholesaler for $20. Then start the more difficult questions. How long did the shirt sit on the shelf before it was stolen? In that time, how much money was expended on employees, utilities, rent, security, etc. How much money was spent on even more external things such as regional managers, the national headquarters, the warehouse which stored the shirt before it went to the store, the truck which delivered the shirt to the store, etc. How much of each of these expenses should be assigned to this particular shirt?

Of course, all of that would be difficult – or more likely impossible – to determine. At best the prosecution would have to bring an accountant to court every single time there was a felony charge to determine actual value. The proof of valuation part of a trial would take hours upon hours as the accountant went thru and described how a particular value is assigned to each and every particular item.

Then there are the costs of lost opportunity. The most obvious of this is the lost profit from the sale. However, this might not be the only opportunity loss. What if the shirt is part of a $300 ensemble? How much in sales does the company lose in addition to the specific items taken? I'm not sure an accountant would be enough to figure all that out. The prosecution might have to bring in an economist.

In most cases, Expenses + Opportunity Costs = Price Tag. As well, the courts aren't going to waste all that time on valuation in larceny cases because there are so many of these cases that if it did the entire system would bog down.

Tomorrow: What if there is no price tag?

__________

¹ Usually, but not always. Sometimes just stealing a specific item is a felony. Examples of this would be a credit card, firearm or dog.

Virginia Drug Deaths by Ethnicity

2011-08-29T03:57:00.001-04:00

There are two major ethnic groups in Virginia. The 2010 census states that Virginia is made up of 19.4% Black Persons and 68.6% White Persons. Interestingly, there is a disproportionate rate of overdose deaths among Whites and a less than to be expected (from pure demographic percentages) rate of overdose deaths among Blacks.

Of course in pure numbers the large majority of overdose deaths are Whites.

Note that among Whites the highest number of overdose deaths come from prescription drugs. It is over 4 times the amount of deaths from always illegal drugs.

Can You Steal Computer Programs & Data?

2011-08-27T13:44:00.003-04:00

Yesterday, I put up a humorous post about the "theft" of $5 million dollars worth of computer information masquerading as art. Or, perhaps, it actually is art (all art is a variation of the Emperor's New Clothes). Anyway, the point is that shortly after I put the post up, I got an anonymous email fussing at me

"Copyright infringement is not theft. Look it up."

Okay. I'm always a sucker for a research question.

Under Virginia law computer theft crimes are in Title 18.2 - Crimes and Offenses Generally, Chapter 5 - Crimes Against Property, Article 7.1 - Computer Crimes. Of course, nobody refers to the statutes in that manner, so if you're looking them up just start at § 18.2-152.1.

At first blush, the pertinent statute would appear to be 18.2-152.8 which states as follows

For purposes of §§ [Grand Larceny], [Petit Larceny], [Receiving Stolen Goods], and [Embezzlement], personal property subject to embezzlement, larceny, or receiving stolen goods shall include:

. . .

2. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:

a. Tangible or intangible;

b. In a format readable by humans or by a computer;

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

Of course, there will always be the problem in a larceny case that larcenies require the "taking with an intent to permanently deprive" an item from the owner. Thus, the more pertinent crime is probably found in the Computer Fraud statute § 18.2-152.3:

Any person who uses a computer or computer network, without authority and:

. . .

3. Converts the property of another;

is guilty of the crime of computer fraud.

Conversion is usually a civil action, but it has been pressed into service here because it does not require larceny's "taking with intent to permanently deprive." Instead, it is the use of the property of another, without permission, for one's own benefit and inconsistent with the owner's rights. And, of course, property is defined for us under § 18.2-152.2 as

3. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:

a. Tangible or intangible;

b. In a format readable by humans or by a computer;

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

The reason you don't see prosecutions under this statute is fairly simple. It's difficult to prosecute this sort of crime because of the dispersion of the parties involved. In other words, it ain't local. If a kid at Pitcairn College downloads 50 songs illegally, the actual property owners (whether they be record companies or artists) are going to be scattered around the United States and abroad. It is going to be difficult to get them to all come to Virginia to prosecute a misdemeanor. Thus ownership becomes difficult to prove. Value could also be difficult to prove ($200 or greater is a felony). Is a cruddy 32 kilobit per second mp3 download the same value as the uncompressed CD?

However, when you've got someone admitting to illegally downloading $5 million dollars worth of data illegally, you really don't have all those difficulties. They've admitted the illegal act and the value. It doesn't get much easier to prosecute than that.

When is Stealing 5 MILLION $ Not Theft?

2011-08-26T11:53:00.000-04:00

That is an external hard drive that purportedly has $5 million dollars worth of stolen software on it.

Link to artsy page.

Gotta admire that kind of bravado. "It's not a theft, it's a piece of art officer."

The Pill Plague: Deaths by the Score

2011-08-23T04:29:00.017-04:00

When you travel outside the Appalachian area you realize fairly quickly that people don't realize the danger from the abuse of prescription drugs. Nevertheless, when you examine the statistics in the 2009 Medical Examiner's report it becomes obvious that pills are the greatest danger faced by all areas of Virginia.

Area	Overdose by Prescription Drug	Overdose By Illegal Drug
Central	99	51
Northern	85	40
Tidewater	68	29
Western	181	10

Of course, the western part of the Commonwealth (the mountains) has the worst problems with prescription drugs compared to always illegal drugs. However, in the rest of the Commonwealth the prescription drug problem causes approximately a 2:1 level of deaths compared to the always illegal drugs. Nevertheless, you seldom hear about this problem in the rest of Virginia; they don't seem to realize the depth of the problem yet.

For those of you who might be vitiated because people commit suicide with prescription drugs, the ME's report also tells us that the number of accidental deaths (overdoses) for prescription drugs in 2009 is 322. There were also 103 suicides by prescription. The 322 prescription overdoses compare well over a 2:1 ratio with the number of overdose deaths from always illegal drugs (128).

Drug Deaths in Virginia 2009

2011-08-22T05:56:00.003-04:00

The 2009 Virginia Medical Examiner's report is online and these are the 5 counties with the highest percentage of drug deaths:

1. Patrick County (green on map)

2. Radford City (red on map)

3. Bland (yellow on map)

4. King and Queen (light blue)

5. Tazewell (dark blue)

As you can see by the map that follows, most of these counties are in Southwest Virginia.

It could be argued that because of lower populations a few deaths in a county can skew the results by presenting a larger proportion of the population than many deaths in a larger population in a city such as Richmond. This is true and King and Queen County is probably on the list because of that. However, when the higher percentages of deaths due to overdoses cluster is is indicative of a wider problem. As well, if you go back through the reports from the years before 2009 you see that the higher percentages of drug deaths consistently occur in Appalachian areas. In fact, this is the third time Tazewell has been in the top five in 7 years. Here's a map of previous distribution of highest death rates by drugs.

It's all part of the pill plague.

Yes, Pills are a Problem Even if the Feds Won't Admit It

2011-08-21T18:13:00.000-04:00

The Associated Press is reporting that the DEA and FDA have royally screwed up in the scheduling of hydrocodone. More accurately, they have screwed up the transfer of hydrocodone cut with acetaminophen from a schedule III drug to a schedule II drug.

"They're not doing a darn thing. There's no study that takes 12 years. When you think how many people have died of hydrocodone overdoses, it's inexcusable."

Anybody who deals with this as part of the criminal justice system understands the problems that this has caused. A larger portion of doctors et al. seem to have caught on that oxycodone is a massive problem, but they don't seem to have caught on to this fact for hydrocodone. The stuff seems to get handed out like candy and abusers are everywhere. Get off the stick. Hydrocodone and acetaminophen needs to be a schedule II.

This garbage is poisoning large portions of the country. It's even getting to the point that companies can't hire people.

Not long ago, 11 people applied for a job with a small Southwest Virginia business. Five walked away when told they would have to take a drug test. Another five took the test and failed.

The Shows a Person Should Watch Before

2011-08-20T19:38:00.000-04:00

There are about a million shows which have graced our TV's about lawyers ranging from comedies to soap operas. Few of them actually show a realistic view of the life of the law in or out of a courtroom. These are the three which I think come the closest to reality.

1. The Practice:

I've never watched the entirety of this series. It was a soap opera and courtroom drama. At first, the courtroom part played a more important part. The first few seasons showed the reality of cramped offices, money problems, manipulative and unrealistic clients, interactions between defense attorneys and prosecutors, and hard fights in the courtrooms. However, after a certain point it became more and more of a soap opera as well as making the protagonist firm undefeatable in murder cases and making the cases more and more outlandish. Nevertheless, the first couple seasons are worth watching to get a feel for how things feel when you are practicing.

2. Raising the Bar:

This show gives you the feel of how things work for lawyers who represent indigent defendants. It really gives you the feel for how indigent defense attorneys see the world: hostile judges, unyielding prosecutors, selling deals to clients - despite their oath that they are innocent - because it's a better deal than they will get when they are probably found guilty, etc. It was flawed in its representation of how things work in the prosecutor's office and all the clients were entirely too innocent. Still it's worth watching both seasons (which are available on YouTube).

3. Night Court:

Sometimes humor is the best representation of reality. Talk to an officer and he'll tell you that about Reno 911. Well, Night Court is our Reno 911. Sure, it's over the top and silly, but as a representation of how things work in a misdemeanor court, it's spot on with the weird and petty things that come before the court and the black humor everyone develops to deal with it. And besides, it's fun.

Identity

2011-08-17T10:08:00.001-04:00

I am prosecuting a case wherein the primary defense is "It wasn't me."

The first witness testifies that he got jumped outside a bar and hit by a drunk guy who had brown hair and was approximately the defendant's size and weight, but the witness did not see the face of his attacker because the witness ran away as soon as somebody came out of the shadows swinging and cussing at him.

Witness number two testifies that, some time before witness one came out of the bar, witness number two came out of the same bar and a drunk guy came out of the shadows cussing at him and tried to hit him, but that he just kept moving and the guy missed him. Witness number two saw the face of his attacker and identifies him as the defendant.

At this point, the case is looking somewhat tenuous as to identification and I'm a little worried. Then the judge asks the witness which bar this happened at. Unbidden, the defendant blurts out, "We were all at Smitty's Bar, Judge."

The case went so much better for the prosecution after that.

Kentucky is Arresting Its Kids

2011-08-14T14:45:00.000-04:00

2,117 children under the age of 10 have been charged with crimes in Kentucky since 2006.

Free Legal Advice

2011-08-11T04:00:00.004-04:00

Scott has been set off by lawyers (and non-lawyers) giving free legal advice over the interweb. His main complaint? They get it wrong.

I'd like to hone in on that a little bit. Since time immemorial, people have given defendants bad legal advice. Usually, it's been Uncle Louie or the guy at the barber shop or even the guy in the next cell over. These people have always had more credibility to defendants than their defense attorneys. After all, Uncle Louie has been to jail seven times and he's talked to at least a dozen attorneys with all the times he's been charged; surely he's got more accumulated knowledge than a mere attorney.

The interweb has just added another dimension to this. Scott's right. If you search the web you find any number of sites claiming to give out free advice - advice which almost always seems to be substandard, incomplete, or even naive. It's another layer of garbage the defense attorney has to fight his way through in order to convince his client of the realities in his particular case.

Personally, what bothers me the most is when an attorney answers a question from someone in a different State. I hate to tell this to all of you out there, but it doesn't work in Virginia like it does in your State. We kept the common law (no MPC here), we have common law rules of evidence (not a set of rules based on the federal rules), required discovery is pretty much the constitutional minimum (no witness list, no statements from Commonwealth witnesses), juries sentence (usually hard), we have no parole (life means life & other felons serve 85%), and most every jury trial that's not a rape or murder takes a single day. There are a million differences between the way it works here and the way it works where you are. When you confidently tell a person online that the law is X, Y, and Z and the trial will proceed A, B, and C you are probably absolutely correct for your little corner of the universe. You are absolutely wrong as to Virginia.

There's a story I when I first started practicing criminal law in Virginia. A Big City Lawyer had come down from somewhere up North to try a cocaine distribution case, pro hoc vice. He walks into the Virginia courtroom on the day of trial and states imperiously to the judge, "Your Honor, I don't see jury selection taking any longer than two weeks in this case." The judge looked down from the bench and said, "You're right counselor. Jury selection will be done in one hour. Opening statements will take up the next 30 minutes. Then will come the evidence and I expect the jury to be out by 4 pm or so. We should have the trial finished today." And, so the story goes, the trial was done that very day and Big City Lawyer went back North in a state of shock.

Now, I think a good portion of that story is apocryphal. However, it does reflect the reaction I get from most lawyers from otherwhere when I explain how juries are done in Virginia. It also demonstrates how different judicial systems are from place to place.

I'll make a deal with ya'll. If you don't give advice to people from Virginia about criminal law, I won't start telling them how everybody should only get convicted of possession in the 7th degree. Deal?

Innocent Possession

2011-08-10T04:15:00.001-04:00

An emailed question: "I was wondering if you might write something about a possible innocent possession defense in Virginia. There is such a defense in D.C., narrowly circumscribed though it may be, and a jury instruction supporting it. But I can't find anything in Virginia."

First, I had to figure out what was meant by "innocent possession." Looking at D.C. cases, it seems to be the possession of a firearm while possessing drugs without a nexus between them. The federal statute dealing with this is 18 USC 924(c)(1)(A), which states in pertinent part

[A]ny person who, during and in relation to any . . . drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such . . . drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years

The problem is that Virginia Code sec 18.2-308.4(C), which covers the same ground in Virginia, has no nexus requirement.

It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a [drug]. [A]ny person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of five years.

At one time, the Virginia Court of Appeals had inferred a nexus, but this was rejected by the Virginia Supreme Court in Wright v. Commonwealth, NOV09, VaSC No. 090308. Subsections A & B of this statute contain language that the possession must be "with knowledge and intent", but the General Assembly declined to include that language in subsection C.

So, in my opinion, innocent possession is not going to be a defense in Virginia.

Innocent Possession Part II

2011-08-10T04:13:00.047-04:00

After reading Jamison Koehler's post on innocent possession of a firearm, I see that he is talking about a D.C. exception to any possession of a firearm charge so that if (1) there is a lack of criminal purpose, and (2) the gun is possessed as an affirmative effort to further "social policy underlying enforcement" it is not illegal

My answer now shifts to, I don't think this defense exists, but you would have to look at what ever possession statute the defendant was charged under. If there is no intent element in the specific statute then possession is strict liability. See Esteban v. Commonwealth (strict liability when a teacher accidentally brings a pistol to school in her purse). For instance 18.2-308 states

If any person carries about his person, hidden from common observation, [various weapons], he shall be guilty of a Class 1 misdemeanor.

There's no intent anywhere in that statute and Virginia's appellate courts have been clear that if a non-common law statute has no intent included no intent is needed for a conviction.

Other firearm statutes require "to knowingly and intentionally" possess (§ 18.2-308.1:1; 18.2-308.2) or to possess "with knowledge and intent" (§ 18.2-308.4(A) & (B)). So, possession would not be illegal under these statutes if the firearm was possessed by accident or was planted on someone.

However, I can find no intent in a Virginia statute which matches the D.C. innocent intent doctrine. The nearest thing I can find the "necessity defense." This defense requires (1) a reasonable belief that the action was necessary to avoid an imminent threatened harm and (2) a lack of other adequate means to avoid the threatened harm and (3) the evidence must prove a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm. Waller v. Commonwealth, SEP08, VaApp No. 1024-07-3. A generalized fear that someone will harm a person at some time is not enough to possess a firearm. Byers v. Commonwealth, NOV01, VaApp No. 2269-00-3. However, if someone is under fire, runs to his father's shed, and gets his father's shotgun to defend himself and his girlfriend a necessity instruction can be required. Humphrey v. Commonwealth, OCT01, VaApp No. 1982-00-2.

Language of a Statute

2011-08-09T04:04:00.000-04:00

A question came in my email:

In Virginia Code sec. 9.1-910 does "two or more offenses for which registration is required" mean two offenses with time in between offenses, two different offenses, or any two offenses regardless if they were part of one occurence?

As I read it - AND THIS IS STRICTLY MY OPINION, NOT LEGAL ADVICE the language is not ambiguous. Here's the statute:

Any person required to register, other than a person who has been convicted of any . . . (ii) two or more offenses for which registration is required [may petition a court after 15 or 25 years to be struck from the sex offender registry.]

It simply reads "two or more offenses." There are no qualifiers added. It means conviction of two charges, however they may have occurred or whenever they may have been convicted.

A quick look at other Virginia statutes which deal with multiple sexual offenses seems to support this interpretation. 18.2-67.5:1 (3d misdemeanor sexual offense) states of the prior two "each such offense occurring on a different date." 18.2-67.5:3 (punishment of a subsequent sexual assault) and 18.2-67.5:4 (punishment of a subsequent violent sexual assault) both state the second offense must occur "when such offenses were not part of a common act, transaction or scheme, and [the defendant] has been at liberty as defined in § 53.1-151 between each conviction." The presence of this language in the other statutes indicates that the General Assembly includes this types of language when it intends to separate the offenses in some manner. Therefore, 9.1-910's lack of this language would indicate the General Assembly did not intend to put this kind of separation between the offenses.

Around the Web

2011-08-08T06:03:00.001-04:00

1) ESPN does not want you to know that Dick Vitale met the Pope. Long live the anti-Catholic bias!

2) It's good that the Army is preparing for the zombie horde.

3) Scott makes the case for not going to Widener School of Law.

4) At least in Idaho, it is illegal during closing arguments for a prosecutor to talk about a refusal by a defendant to allow a search.

5) A potentially very valuable painting of the face of Jesus was stolen from closet in a trailer.

6) Finally, now that I've had time to bury it, the Virginia State Bar has issued an opinion that prosecutors cannot propose and defense attorneys cannot recommend a condition in a plea agreement stipulating that the defendant waives his ability to raise an ineffective assistance of counsel on appeal or habeas.

Pill Presentation at UDC School of Law

2011-08-05T10:06:00.001-04:00

This is from early this year at the University of David A. Clarke Law School. It was a symposium titled "Life After the War on Drugs." Most everyone who spoke talked about making drugs legal and regulated. When I stood up, I felt like I should have started out by saying, "and here's the other side." Anyway, it was an interesting seminar. This is just my presentation and the questions I participated in (the question I ask is to a student who was propounding the idea that a fellow drug user who reports another's overdose should get a Good Samaritan exception to the drug laws).

If you'd like to see the entire symposium, it is here.

Advisement: Theory Behind It

2011-07-25T04:35:00.003-04:00

In reaction to the posts last week that I made explaining why the Court of Appeals is wrong in its continuing efforts to deprive trial courts of the common law practice of taking cases under advisements I was asked a couple questions in the comments:

1) A judge takes a jury verdict under advisement, to be dismissed after a period of time. "In doing so, he thumbs his nose at both the General Assembly's decision to define an offense and a punishment and your decision (as a member of the executive branch) to prosecute the offense. Doesn't this mean that the unelected judiciary is the supreme branch of government??"

2) "[W]hy do you think it is the judiciary - which is not accountable to the electorate - that should be vested with this authority rather than the elected prosecutor?"

First of all, let's discuss the way Virginia's constitution creates its government. It is not the tripartite government which everyone seems to be assuming. To begin with, prosecutors in Virginia are not a part of the executive (gubernatorial) branch. They are "constitutional officers." Virginia's constitution sets up a General Assembly (Article IV), Governor (Article V), Judiciary (Article VI), and Constitutional Officers (Article VII Section 4). Constitutional Officers, including the Commonwealth Attorney, are answerable to the people of their county or city, not to any of the three branches coming out of Richmond.

As well, the Judiciary is not a completely free, stand alone branch. It is neither unelected nor unaccountable. However, it is elected by and accountable to the General Assembly (Article VI Section 7). In Virginia, when you stand in front of a judge you are standing in front of someone empowered with the imprimatur of the General Assembly. The General Assembly is constitutionally forbidden to intervene in individual cases (Article IV Section 14) but it places into position the trial judges who are so empowered.

The General Assembly continues to refuse to pass a simple statute banning the practice of taking cases under advisement. It places judges in trial courts with the knowledge that they have this power because the General Assembly has not stripped this power from judges through a general law. By placing a judge in a courtroom the General Assembly is stating that it trusts this judge's discretion in the use of advisement powers. Thus, when a judge chooses to take a case under advisement it is not the act of an unaccountable judge, it is the alignment of both the judiciary and the General Assembly in a decision to mitigate the local Commonwealth Attorney's decision to prosecute.

So, the answer to question number 1 is that it looks to me like the General Assembly is the supreme branch of government. It has both the ability to choose to write advisement out of existence and / or the ability to (re)elect judges who will use advisement in a manner the General Assembly finds appropriate.

As for question 2, I don't think Commonwealth Attorneys should be the final arbiter in court. At core, the duties of a Commonwealth Attorney are (1) to decide whether a case should be prosecuted, and (2) to present the case to the finder of fact / sentencer. I realize that in the modern era prosecutors perform a sentencing function in 90% of cases through plea agreements and I think this misinforms people's perceptions.

The second a defendant decides to go to trial or just plead guilty and be sentenced by the judge the case disposition function gravitates right back to where it belongs - the judge. Commonwealth Attorneys were never meant to determine the outcome of a case. In a perfect world, with infinite resources, plea agreements would be an anathema and we would never have drifted into a mindset which informs us that prosecutors should have any ability to determine a sentence or whether the circumstances are such that a sentence should be mitigated.

However, we live in the real world and in the real world I think the Commonwealth Attorney should have the power to make a plea agreement to take a case under advisement, with facts stipulated by the defense to be sufficient to convict if the defendant doesn't complete conditions X, Y & Z. Of course, for that to happen the judge has to have the power to take cases under advisement rather than being required to instantly find guilt and sentence the moment facts in the courtroom are sufficient for conviction. Again, a simple statute written into law by the General Assembly could, rather than eliminating advisement, limit advisement to cases in which the Commonwealth agrees, but the General Assembly has never passed either statute. In my opinion, up until the moment the General Assembly has passed one or the other, both the judge and the Commonwealth Attorney should be able to use advisement in the courtroom.

Look, I understand why Commonwealth Attorneys worry about and dislike judges being able to take cases under advisement. No one likes their will to be overborne by that of another - including me. Every single one of my arguments in court is insightful, concise, relevant and well thought out. No judge should ever disagree with me and every motion, objection, and sentencing recommendation I make should be treated as though it were sacred script and followed down to the last jot and tittle. Unfortunately, I don't seem to be able to convince the judges of this. More than once a judge has refused to do what I tell him should be done. When this happens I do what every good prosecutor does: I go back to the office and whine and moan and gripe to my brethren (and sistren), get it out of my system and go back to court the next day to deal with the next case.

Looking at the issue with a little more seriousness , any discretion given to any party in the courtroom is subject to abuse. A proper use of advisement would be the application of equitible circumstances in a particular case to mitigate if factors called for it. A judge will mitigate a young prosecutor who is feeling his oats and prosecuting a grandmother for sticking a can of peas in her pocket¹ or mitigate cases wherein the judge perceives that local political pressures (via merchants, officers, the local paper, etc.) are causing a technically correct, but equitably dubious prosecution to go forward. In these types of cases, the judge, as appointed by the General Assembly, represents the interest of the Commonwealth of Virginia as a whole in mitigating potential local excesses.

Abuse of advisement would come when judges use it too often so that it becomes a blanket treatment. Some judge will decide that nobody should get convicted for stopping on the way home from work and tossing back a brew (or ten) and start taking large numbers of DUI cases under advisement. Another might decide that marijuana shouldn't be illegal and start taking all those cases under advisement. In doing this the judge is invalidating the general laws instead of mitigating particular cases due to unique circumstances. However, there is already a solution built into our system for this. The judge goes back in front of the General Assembly every few years for re-election. At that point he should be called to task for his advisements. "Judge Smith, you took 750 cases under advisement in the last 3 years. 450 of those were without the agreement of the Commonwealth Attorney and 400 of those were marijuana cases. Please explain to this committee why you alone, among all the judges in the Commonwealth, don't feel that you should enforce a law written by this legislature."

If they don't like the answer the members of the General Assembly do not have to re-elect that judge. While the General Assembly hasn't shown a desire to eliminate advisements, it has shown itself quite capable of questioning judges over their reductions of convictions.

---------
¹ I kid you not, I've had a discussion with more than one local attorney, usually older, who tells me that she gets her hands full and sticks things in her coat pockets all the time while shopping. I think that some of our older citizens are still in a mindset from a more trusting age when people hooked on oxy's weren't trying to steal anything not nailed down.

An Important Endorsement

2011-07-24T18:24:00.000-04:00

Thanks Ron

FYI: Advisement Posts

2011-07-19T09:00:00.000-04:00

Before I get the venom filled emails . . .

I'm spitballing here. These arguments are embryonic, not polished and perfected. Before I made them in court or as part of a brief I'd put considerably more work into organization, historical analysis, and other refinements.

If anyone wants to put together a serious argument against advisement - based on Virginia constitution, law and precedent - email it to me. I will be happy to publish it. The only thing I require is that it explain why the single larceny doctrine would still exist under your explanation and why common law procedures - such as having a judge presided over "sentencing hearing" which occurs everywhere in Virginia post jury sentencing (even when the presentence report is not in question) despite 19.2-298 only allowing the judge to pronounce sentence - are still valid.

Advisement: Let's Look at the Court of Appeals' Rationale: STATUTORY

2011-07-19T04:52:00.001-04:00

To start with, the first statutory question is:

Did the Virginia Court of Appeals have jurisdiction to hear a case concerning the ability of a court to take a case under advisement?

I'm not sure. Per § 17.1-406(A) the nearest jurisdiction I can find that the Court of Appeals had was

Any aggrieved party may present a petition for appeal to the Court of Appeals from (i) any final conviction in a circuit court of a traffic infraction or a crime, except where a sentence of death has been imposed

So, the Court of Appeals has the ability to hear an appeal of a conviction. However, this case isn't about the conviction. The error alleged had to do with the trial judge's assertion that he did not have the power to take a case under advisement.

In any case, the Court of Appeals has shown that it is obsessed enough with this issue to take a rather weak case to address it with. If it can't get this issue addressed here it will continue to seek ways to force the issue forward. So, the Supreme Court should probably address the question to get it settled (even if there is a lack of jurisdiction, there's got to be some way for the Supreme Court to assume the case).

Next, we have to look at the Court of Appeals' single paragraph reasoning that the General Assembly's passage of statutes regulating the way advisement can be done in certain cases forecloses it in all cases. Here's the pertinent section:

The enactment of these statutes demonstrates the General Assembly correctly concluded no common law precedent authorized such extraordinary relief and that, if Virginia courts were to have this power, it must be granted by statute

Nothing in that statement stands up to even medium level scrutiny. You have to want to believe to agree with the rationale offered.

With a view toward reality, the General Assembly had to get the idea of taking a case under advisement from somewhere. Where did the General Assembly get that idea? From the common law judicial practice of taking cases under advisement. What did the General Assembly do with this knowledge? Did it forbid such an act by passing an extremely simple statute such as I have offered previously:

1-200.01 Limitations on Judicial Sentencing

Unless provided for by a specific statute, no judge in the Commonwealth of Virginia is allowed to reduce, mitigate, or vary in any manner the punishment which the General Assembly has determined is appropriate for a citation, misdemeanor, or felony.

It chose not to do so.

In fact, it recognized and regularized the practice in regards to certain specific criminal violations. It certainly set the proper procedure for advisement in those cases and therefore forbade other ways of taking those particular crimes under advisement.

What the General Assembly has done is recognize a common law judicial procedure, regulate it in certain charges, and otherwise left it alone statutorily. This is a purposeful act on the part of Virginia's legislature and if you don't think so ask yourself this: Do you believe that law enforcement and prosecutors have failed to actively lobby the General Assembly to try to get advisement banished from law for years and years (and years and years)?

There is no statutory basis for the court to ban advisement. Furthermore, banning it will step on the legislature's prerogative of writing a specific law to deal with this issue.

Advisement: Let's Look at the Court of Appeals Rationale: VIRGINIA CONSTITUTION

2011-07-18T04:05:00.002-04:00

To date, judges in the Virginia Court of Appeals have thrice struck down the common law procedure which has developed in Virginia trial courts of taking a case under advisement for a period of time to be dismissed/reduced if the defendant fulfills certain conditions. Twice, the Virginia Supreme Court struck down the Court of Appeals' decision on narrow grounds. Not to be deterred, the Court of Appeals has tried again in Taylor v. Commonwealth.

Let's look at the three rationales given by the Virginia Court of Appeals on this subject.

CONSTITUTIONAL:

First is a claim that under the Virginia Constitution, the trial courts are barred from doing this because of the separation of powers. Somewhat strangely, the court does this by quoting the Virginia Declaration of Rights, but it doesn't matter much because Virginia Constitution Article I Section 5 has basically the same language:

That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct;

I'll refer to this because it is the law extant in Virginia. As well, the court cites Virginia Constitution Article III:

The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others

These are wonderful statements of rather amorphous generalities, but not really very helpful. You would think the court's next step would be to dive into the actual specific language of the sections of the Virginia constitution dealing with the powers of the "departments of the Commonwealth." Instead, the court moves in the opposite direction, basing its opinion primarily on the federal supreme court's interpretation of the federal constitution (a not particularly relevant or helpful analysis).

Why did it do this? Well, the answer is pretty easy to figure out: the Virginia constitution does not support the court's opinion or would cause great difficulties if applied strictly.

The first place the court should have gone is Article IV Section 11:

No law shall be enacted except by bill.

The enacted language seems to have come into Virginia jurisprudence with the 1901 constitution. Earlier constitutions referred to "All laws." In the Virginia constitution of 1776, Section 8 states:

All laws shall originate in the House of Delegates . . .

In the 1830 version, Article III Section 10 states:

All laws shall originate in the house of delegates . . .

However, the 1869 constitution does not state whence laws shall originate; it simply talks about where bills can originate.

So, a plain, historical reading of the Virginia constitution would be that nothing that originated outside of the House of Delegates prior to 1869 has the force of law. These constitutions trump the statute the General Assembly passed adopting British common law; none of the British common law originated in the Virginia House of Delegates. Of course, any common law developed completely between 1869 and 1901 would be valid, but anything thereafter that was created by the courts would not be "enacted by bill" and would be right out the window.

That, of course, while entirely logical, is a nightmare. No sane court is going to go down that path into a chaos wherein there would be valid challenges to the very concepts of larceny, robbery, burglary, etc. because the General Assembly has never passed a law defining them. It left the British common law in place and allowed the courts to develop their own common law on top of it.

In any event, the one place where all this is trumped is under the current constitution's Article VI Section 5:

The Supreme Court shall have the authority to make rules governing the course of appeals and the practice and procedures to be used in the courts of the Commonwealth, but such rules shall not be in conflict with the general law as the same shall, from time to time, be established by the General Assembly.

To be clear here, taking a charge under advisement is not substantive. It has nothing to do with the elements of the crime. It has to do with sentencing and mitigation. These are procedural matters. The Supreme Court has to make rules dealing with procedure unless the General Assembly has passed a law dealing with it.

So, the General Assembly could solve this all if it chose to pass the following statute:

1-200.01 Limitations on Judicial Sentencing

Except as provided for by a specific statute, no judge in the Commonwealth of Virginia is allowed to reduce, mitigate, or vary in any manner the punishment which the General Assembly has determined is appropriate for a citation, misdemeanor, or felony.

The problem is that the General Assembly has never chosen to do this. It has tacitly admitted the judicial practice of taking cases under advisement by limiting the practice specifically in certain cases such as misdemeanor property crimes, domestic A&B, and drug crimes. So, it's a judicially controlled procedural practice (part of the sentencing or post sentencing process) which has been recognized, but not forbidden, by the General Assembly.

Thus, the Court of Appeals' decision banishing advisement is rewriting the law contrary to the expressed will of the General Assembly and it is the Court of the Appeals assuming the constitutional rule making powers of the Virginia Supreme Court. Neither of those strike me as particularly constitutionally valid.

--------------

Tomorrow: Statutes

So that's where it came from . . .

2011-07-17T16:20:00.000-04:00

From Virginia's Constitution of 1830:

Indictments shall conclude, Against the peace and dignity of the commonwealth.

I've seen that language in all sorts of indictments and always wondered where it came from.

And, just so nobody out there who is writing or approving indictments freaks out, it's not in the current constitution.

Does the Constitution require an "Open File" Policy?

2011-07-15T08:57:00.002-04:00

An "open file" policy is when a prosecutor allows the defense access to everything in his file. Personally, I favor this as long as there is nothing in the file which will endanger someone. Examples of things which I do not think should be given out are the names of confidential informants¹, officers' personal phone numbers or addresses, social security numbers, &cetera. Basically, all a defense attorney has to do to get a copy of everything in my case files is send a discovery motion and the whole thing gets emailed to him.

However, Virginia's discovery rules do not require anything nearly so accommodating. Rule 3A:11(b) is as follows:

(b) Discovery by the Accused.

(1) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph any relevant (i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case, or copies thereof, that are known by the Commonwealth's attorney to be within the possession, custody or control of the Commonwealth.

(2) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph designated books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, that are within the possession, custody, or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. This subparagraph does not authorize the discovery or inspection of statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth or of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case, except as provided in clause (ii) of subparagraph (b)(1) of this Rule.

As is obvious above, there are lots of things which defendants are not entitled to under the rule. No police reports, no witness statements, no witness lists, &cetera. There are a number of prosecutors who don't give a bit of evidence over which is not required by 3A:11.

Of course, Brady still applies and without an open file the prosecutor places himself squarely in the crosshairs when time comes to explain every possible piece of evidence which could have possibly been used in some exculpatory or impeachment manner. Recently federal district court judge Raymond Jackson took a slap at Virginia prosecutors who do not have open file policies and specifically went after two of whom he disapproved.

In describing why the Commonwealth's Attorney's Office does not have an open-file policy, Mr. Smith stated the following at the habeas evidentiary hearing: "I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided." Tr. 110. In effect, Smith admits here that his contempt of defendants who "fabricate a defense" guides his perspective on disclosing information. This is particularly troubling in the case at bar where the record is replete with statements from Smith and Jones regarding the scrutiny and credibility determinations that they made (as opposed to the jury) regarding the relevance of any potential exculpatory evidence. Essentially, in an effort to ensure that no defense would be "fabricated," Smith and Jones' actions served to deprive Greene of any substantive defense in a case where his life would rest on the jury's verdict. The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process. See, e.g., Kyles v. Whitley, 514 U.S. 419, 439-40 (1995) ("Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial's outcome as to destroy confidence in its result. This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence ... [a]nd it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.").

The interesting language therein is "[t]he Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process." The question becomes, does this refer to the policy of not having open files or does it refer to the court's finding that the prosecutors in this case failed to ferret out every last possible Brady issue in their file and turn it over?

I don't think it means that only open file policies are constitutional. Alternatively, if the judge did mean it that way, I think he overstepped. The Virginia discovery system is constitutional, it just requires more vigilance on the part of the prosecutor for Brady issues. In that vein, I think this is most likely just a statement the judge is making after having worked himself up into a fervor over his perception of errors and purposeful wrongdoing by the prosecutors.

In the long run, I don't see this as having any real affect on Virginia's discovery rules. To begin with, it carries no precedential weight. As well, like most habeas findings, it is likely to be overturned on appeal (not speaking of merits here, just statistical likelihood).

via VLW

----------
¹ Yes, I realize this may have to be done eventually, but initially it should not be made available.

The Encryption Key: Is it is or is it ain't covered by the 5th?

2011-07-13T11:18:00.000-04:00

The DOJ is trying to force a citizen to give up her encryption key (that's a password to those of us who speak plain English) because they can't break the encryption on her computer. I haven't researched this issue, but it is an interesting question because a password could easily be characterized as the equivalent of a key to a physical lock box or as speech required by the government as an admission that the suspect knows what is on the computer and has control over it.

Cnet is all over this story and even has an interview with the defendant's attorney.

An Interesting Take on Dealing with Drugs

2011-07-06T14:07:00.001-04:00

The gentlemen in this video discuss an interesting way of handling the drug problem.

Hearsay in Probation Violation Hearings

2011-07-05T11:46:00.001-04:00

For a long time, hearsay has just been a part of probation hearings. The rationale for this is that a probation hearing is a post-conviction hearing so that the full panoply of constitutional protections are not available for the violator. However, there have always been some protections available for those accused of probation violations and the line has always been a little fuzzy. Last week, the Virginia Court of Appeals addressed whether hearsay can be allowed in a probation hearing in the post-Crawford world.

In Henderson v. Commonwealth, JUN11, VaApp No. 0688-10-4, the Commonwealth introduced witness statements of victims of crimes which had never been prosecuted through the officer who investigated the crimes. The defendant objected. The trial court allowed the testimony. Then came the appeal.

The Virginia Court of Appeals references USSC precedent and states that there is a 14th Amendment due process right for a defendant in a probation violation case to cross examine witnesses against him unless there is a finding of “good cause” for not allowing the confrontation.

The Court then states that the first test which must be passed is whether a statement the prosecution wishes to introduce is actually testimonial. The test adopted here is the same one adopted in the 6th Amendment confrontation cases: the primary purpose test. In other words, if the statement which is sought to be introduced was primarily taken to help capture and prosecute the defendant it is subject to constitutional confrontation requirements. If the primary purpose of the questioning had another purpose (i.e. dealing with an emergency) there is no constitutional entanglement and State rules of evidence are controlling. In other words, if the statement is non-testimonial hearsay it can be introduced, just as it always was, but testimonial hearsay must face the “good cause” test.

The Court tells us that there are two tests to determine whether good cause exists for not requiring the actual speaker of a statement to testify.

Test 1: Balancing Test - The trial court employs a balancing test that weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness.

Test 2: Reliability Test - The trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness.

The Court goes on to state that the reliability test has been implicitly approved in Virginia and the balancing test was found not to apply in the same case (a case involving non-testimonial governmental documents). However, the Court does not explicitly endorse either test. Instead, it runs through both and finds that the statements in this case should not have been allowed under either test. The Court seems to prefer the reliability test, but to be covering its bases in case a superior court should take this question up and decide to use the balancing test.

The Reliability Test: The reliability test is addressed first and the court goes out of its way to point out that good cause is implicit in the reliability test. It does absolutely nothing to explain this statement and it comes across as a gloss. On its face, this makes the reliability test appear to be the less valid of the two tests. However, this might be fixable if in the test above “certain level of reliability” is defined as being equal to, or greater than, that level of reliability which would make the presence of the actual person who made the statement initially entirely irrelevant.

Then the Court goes on to give several examples of statements which have been recognized as being reliable in federal appellate courts:

the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence),

statements falling under an established exception to the hearsay rule

statements corroborated by detailed police investigative reports

statements corroborated by the releasee’s own statements

statements given under oath,

statements supported by corroborating evidence

Also included are some which have been found to be not reliable:

out-of-court statements reflecting an adversarial relationship with the accused

statements containing multiple layers of hearsay

The Court then goes on to find that the unsworn allegations of crime victims are not reliable and therefore an officer cannot restate them as hearsay during a probation violation hearing. Nevertheless, be aware that there is a lot of language in this case which seems to indicate that if there was other corroborating evidence the reliability of the victims' statements could be bolstered to the point that they are reliable and could be introduced.

The Balancing Test: The balancing test has two sides to it. The Court adopts two factors on the defendant's side of the scale:

the importance of the hearsay evidence to the court’s ultimate finding

the reliability of the facts to be proven by the hearsay evidence

On the other side, the Court adopts two factors to weigh the prosecutor's interest in allowing the hearsay in:

the explanation the government offers of why confrontation is undesirable or impracticable

the reliability of the evidence which the government offers in place of live testimony

You'll notice that reliability is on both sides of the scale. In fact, this seems to be a reliability-plus test. Basically, once reliability is established the weight the evidence will carry against the defendant must be weighed against the government's reason for not having the person who made the statement available.

In this case, the Court found that the hearsay evidence weighed very heavily toward the finding that the defendant had violated his probation. It then found that there was no evidence that the government had tried to subpoena the witnesses nor evidence that the witnesses could not be brought to the trial court. Consequently, the hearsay was inadmissible.

-----------

Conclusion: At least for the near future, the standard in Virginia seem to be that testimonial hearsay can only be introduced if it passes the reliability test. Interestingly, the Court recognizes, in a footnote, that this may not pass a straight Crawford test, but it points out that this is confrontation under the 14th Amendment, not confrontation under the 6th Amendment. Therefore, a strict compliance with Crawford does not apply.

Virginia Court of Appeals Invalidates 221 Years of Common Law

2011-06-30T20:49:00.000-04:00

In its neverending quest to take the power of judges to reduce a conviction to a lesser offense or dismiss it (when the trial judge deems that circumstances are appropriate), the Virginia Court of Appeals has this week invalidated every single alteration to the common law of Virginia that appellate courts have done, in the entire history of recorded decisions (since 1790). Judges are now entirely limited to (1) what the Virginia constitution specifies they can do, (2) what the English common law, as frozen in time in 1607 and writ in stone in the Tome of the Almighty and All-Encompassing Blackstone, allowed, and (3) what statutes allow.

In one fell swoop, the Virginia Court of Appeals has changed Virginia from a Common Law State to Civil Code State. It's a tripartite civil code with one corner in the Virginia constitution, one corner in Blackstone, and one in the Virginia Code. Be advised, trial judges, that anything outside of that is not allowed per Taylor v. Commonwealth.

This, of course, is ridiculous. The Appellate Court's assertion that the common law in its entirety came to a screeching halt in 1607, is just plain unsupportable. Anyone with even a modicum of legal history under their belt knows the common law was long seen as a developing thing. If the Virginia Court of Appeals decision is taken seriously, every post 1607 court developed rule dealing with evidence is out the window (remember Virginia's evidentiary rules are in large majority common law). All those hearsay rules and exceptions better be found somewhere in Blackstone, because they aren't all in the statutes and they definitely aren't in the constitution. And I'm sure there a litany of other evidentiary practices and legal doctrines which have developed since 1607 which are not written into a statute.

UNDERSTAND, for goodness sake UNDERSTAND, that the common law and constitutional interpretation are different things. Yes, I agree that constitutions freeze in place when they are written. Interpret them per the language and history of that time. A constitution is meant to set outer limits and in order to understand them you must interpret that document the way it was originally meant to be interpreted. ON THE OTHER HAND, it shows an appalling lack of understanding to close off developed and developing common law because it did not exist in 1607. The common law is meant to adapt and then be snipped back by the legislature if it goes too far.

The Virginia General Assembly has declined to adopt a Model Penal Code; it has declined to adopt comprehensive Evidentiary Rules; it has NEVER spoken as a whole on the subject of a judge's ability to show mercy through reduction or dismissal of charges except in that it has specified how these things can be done in regards to certain offenses. In fact, the last is a tacit recognition that this practice is ongoing and a shaping of it rather than a rejection of it. The General Assembly is acting in a manner which encourages the common law.

By stepping into the gap which has been left by the lack of legislation addressing this, the Virginia Court of Appeals has set itself up a legislature. This is not appropriate and the opinion should be overruled and no further action taken by the courts until such time as the General Assembly speaks on this subject. Judicial fiat should not replace the legislative process' ability to deal with developed common law procedures. The Virginia Supreme Court has twice rejected the Court of Appeals' overreaching in this area; I'm sure it will at least address this issue. So now we wait.

In the meantime, we get to challenge everything a judge can't justify with a direct citation to Blackstone, a statute, or the constitution. Commence au festival!

Law Students, Law Students, and Not a Job in Sight

2011-06-30T17:37:00.000-04:00

Number of neophyte lawyers who passed the Virginia Bar exam:

1,375

Number of legal job openings:

956

You do the math.

At least Virginia isn't in as bad shape as New York.

CrimLaw News Around the World & Around the Corner

2011-06-30T11:08:00.000-04:00

1) A woman in Kenya is arrested for having an abortion.

2) In possibly the most ineffective issuance of arrest warrants ever, the UN tribunal sitting to determine who killed the Lebanese Prime Minister - and nobody thinks that Hezbullah will ever let them be brought to trial.

3) The former President of Taiwan is indicted for embezzling 7+ million while in office.

4) The trial of the two Egyptian police officers who killed a kid and started the rebellion has been put off and might end up with more serious charges.

5) I don't know anything about Japanese criminal procedure, but apparently they appoint jurors rather than having a jury selection process like the U.S. Also, the comments on this murder charge are interesting and seem to indicate that rape & murder in Japan carries about a 2 year punishment.

6) This guy got 2 years for torturing a dog to death during a burglary. The prosecutor asked for 5 years. He deserves every second of the time.

7) If someone steals your purse hit his car with your cane so the police can track him down later.

8) Don't plug your cell phone into someone else's socket in Maine.

9) It's time for new judges in Virginia. Congratulations to each and every one of you. I'm sure you'll all be magnanimous, brilliant jurists, smart enough to agree with my analyses and realize that the argument the other guy is making is just so bogus.

More on JDB

2011-06-29T16:10:00.000-04:00

A couple weeks back I was bemoaning the fact that the Federal Supreme Court has left us without a standard for objectively determining whether a minor is in custody for Miranda purposes. While I was offering possible answers, Scott over at Simple Justice put his finger on the problem: it's based on "common sense." There's not a much more mushy standard than that. Personally, I got a few comments and emails which boiled down to "What's the big deal?" So I thought I'd spend some time spinning out the possibilities which now exist because of JDB.

It seems to me that we start with the standard reasonable person class; to begin with every person is assumed to be in this class. This is what we have from Whren and its progeny. Prior to JDB this class included all individuals. What the court has done in JDB is created at least one exception by class: minors. We perceive that minors have a different mindset than their elders and therefore, we are going to set a different standard for them. What standard will probably be played out over the next several years since the Court punted on that, but we know there is a lower standard of accountabilty.

The interesting part of this is how it effects the Whren standard. It could mean that Whren no longer applies to minors as a class and that the subjective state of mind of a minor is to be taken into account in every single case. That is the nightmare scenario which leads to arguments in every case in which the defense attorney tries to convince the trial court that his 17 year old client is as immature as a 4 year old while the prosecution tries to show that the kid is as more mature than the judge. Meanwhile, Judge Smith will find that everyone old enough to walk is mature enough to understand her right to walk away from questioning while Judge Jones will find everyone 1 tick of the clock short of 18 years of age is so immature that parents must always be present during questioning and Miranda must always be read. This, of course, would be a huge departure from the Whren and I suspect what will eventually wind up with is at least two classes of minors in which those under a certain age (say 16) which are suspected of a crime cannot be questioned without parents present and those 16 or 17 are treated as adults.

As some commenters on the last JDB post realize, another reason I find JDB interesting is that the logic behind it doesn't hold only for minors. Logically, if one class can be excepted from the reasonable person standard others can as well. All it takes to carve another exception from the Whren class is that society perceive that a class of individuals has a different mindset than the rest of humanity. That's not a high hurdle. An obvious class would be individuals with mental deficits. Another which might be carved out are women suffering from battered woman syndrome who are questioned by male officers. Then we can get to ethnic, racial, and religious perceptions. We could also overturn some longstanding law. Those in the class of intoxicated individuals have long been held to account based upon statements they made to officers while they were intoxicated. Now we have an obvious class of individuals who would have a difficult time being cognizant of their ability to walkaway from questioning. Of course, each of these potential classes carries its own constellation of issues in determining "objectively" that a person belongs to a particular class and whether "common sense" perceptions are realities or merely prejudicial perceptions imposed upon the class. In any event, logic dictates that the existence of one class exception means that others also exist and the reality is that we all belong to some class so this newly recognized set of "exceptions" could easily swallow the whole.

However, I have great confidence in the ability of courts to not follow logical reasoning. Trial courts will almost undoubtedly limit the interpretation of JDB to minors exclusively. Appellate courts will follow suit. That doesn't mean that sharp defense attorneys who are pushing the boundaries aren't going to use this opinion as the basis for all sorts of creative arguments.

Tweeting the Traffic Stop

2011-06-28T09:33:00.000-04:00

There's been a little bit of commotion over the last day about Darnell Dockett, a football player from Arizona, tweeting a traffic stop in which the officers tried to get him to let them search his car. You can look at the entire conversation here, but I did want to put up the part which made me chuckle

Police said "do you mind if we look around in your Vehicle?" I said I sure DO! He said "I'm gonna call back up" I said u wanna use my phone?

Opposite Sides of the Illegal Pill Trade

2011-06-27T04:08:00.001-04:00

A local jurisdiction did a drug round up and a local internet site listed all the arrestees. These comments following the list illustrate the "fix the problem but don't punish my family member" outcry we often hear and the "they are destroying the community, get rid of them" we hear even more often.

Family:

My dad is one of these guys. I'm 15 and I don't understand why they do these things. I do know that I have a GREAT father. He just needs some help. I love him and miss very much. I know that jail isn't the right place for him. He needs to be in rehab or something. He has 3 daughters and would do ANYTHING for them that he possibly could. If anyone has anything about these people, walk a mile in their shoes before you judge them.

Okay, So I'm just like a daughter to one of these guys listed above, I'm 16, and his daughter is just like my sister. I'll NEVER understand why he's on drugs, He has 3 girls, and me to raise, He's a GREAT guy, and I know this isn't the place for him, He doesn't deserve to be put in jail. They are addicts, and most of the reason they are addicted is because all the stupid doctors around here, give them the pills to get addicted to.

Punish Them

You got to understand they are DISABLED so that gives them a excuse to sell pills because they can't do anything else but they can work so hard stealing copper, fishing, hunting, going to all the parties, getting drunk, and four wheeling, but now remember I cant work. So let me go to the pharmacy and get my pills for a dollar because I'm DISABLED while everyone else that works hard everyday and all the coal miners that have worked 30 plus years underground and are still going everyday have to pay full price such as 50 and 60 dollars but me i get them for the wonderful price of one dollar so I can turn around an sell them and then when the Law Enforcement works so hard to catch me I'm going to get slapped on the hand and told not to do it anymore and I'll promise I'm straight and I won't ever do anything like that again but as soon as I get out the doctor is going to write me another prescription and whoooo hoooo time to make more money and people can get on the internet and say he just made a mistake.

What a joke. I hope they all rot in jail. Jail is were they should stay. wake up people your county is going to H3LL !!!!!

Do you know how fast you were going?

2011-06-26T16:08:00.000-04:00

J.D.B. v. N.C.: The Supreme Court on Questioning a Juvenile Or How to NOT Set a Standard

2011-06-17T17:04:00.002-04:00

Yesterday the Federal Supreme Court decided in J.D.B. v. North Carolina that in deciding whether someone is in custody (and thus must be told his Miranda rights) the courts must consider the age of the individual. Up to this point, there was a rather strong argument that under appellate precedent the objective factors which were to be considered in determining whether a suspect was in custody were all external to the suspect. Was he in a locked room? Was the officer sitting between the suspect and the door? Was the suspect in cuffs? &cetera. Now, the court has made it clear that those characteristics of a suspect which are known, or should be known, to an officer must be taken into consideration as objectives factors. For the moment this has only been applied to age, and I shall only discuss the age issue today, but it leaves open all sorts of interesting possibilities for future arguments based on race, gender, religion, etc.

J.D.B. was 13 years old. While in school, he was pulled out of class and put in a room with an officer and a vice principal. Without being read Miranda or being put in contact with his parents, he was questioned and confessed to a crime.

The entire argument of the case on appeal was whether his age had to be considered in determining whether he was in custody. And that's the only question the court answered. It's answer? Yes. There's more verbiage to it, but no actual standard appears anywhere. How is age to be considered? No answer is given. The Federal Supreme Court dumps it all back on the North Carolina Supreme Court to decide if J.D.B. was in custody when questioned.

Most of the opinion is spent rebutting governmental claims that age is a proxy for state of an individual's subjective mindset. The problem here is that it is not entirely convincing. What we are substituting for a the subjective mindset of an individual is the perceived subjective mindset of a class. All individuals are presumed both to know that they have the right to walk away from questioning and to have the capability of doing so. However, we perceive that minors, as a class, may not understand they have the right to leave or have the ability to walk away from authority figures.

So, since the Supreme Court has declined to actually give us a standard, how is minority going to be considered in determining whether someone is in custody? Well, the simple answer would just be to lay down a blanket rule that if officers question anyone under 18 without parental presence the questioning is custodial. Yet, that seems just as contrary to common sense as not taking age into consideration at all. After all, we all know that 17 and 18 year olds aren't different (other than an arbitrarily drawn line). If an 18 year and 1 day old understands the difference between custody and freedom to leave, a 17 year and 364 day old should understand as well.

Another possible test would be to go to the age rules which have developed over many years in the U.S. Basically, these age rules declare that (1) a child under 7 years of age CANNOT commit a crime, (2) a child 7 to 14 is rebuttably presumed not to be able to commit a crime, and (3) a child 15 to 17 can commit a crime. The first and third rule can be easily ported into the new precedent. Under 7 a child is always in custody when questioned by an officer; 15 and older the minor is treated as an adult. The problem here is the second rule. If we rebuttably presume that a child suspect age 7 to 14 is in custody when questioned we leave open circumstances in which the child suspect is not in custody because he understands as well as a normal person in the same circumstances. If we start arguing over the maturity of a particular 14 year old (he runs the local gang, handles $10k a week in drug business, and has a 17 year old girlfriend) then we start having objective / subjective problems. We have decided he is objectively in a class presumed to have a mindset not capable of understanding and handling the questioning situation. Are the circumstances which indicate that he is mature objective ones considerable by the officer or are they merely indications of a individually subjective mindset which cannot be considered?

Perhaps the standard is that Miranda must be read to each and every minor, whether the minor is objectively in custody or not. But, that doesn't really solve the age problem. At what age do we deem minors able to even understand Miranda warnings? At what age do we deem them capable of acting even if they understand?

This has, just in the portion that will deal with minors, potential to ripple out for at least 3 to 5 years. If you throw in all sorts of other classes - abused women, lawyers, the handicapped, etc. - this has the potential to ripple out into decades of constitutional decisions.

Alamo Drafthouse

2011-06-16T11:46:00.000-04:00

Never been to Austin in my life, but I've heard numerous critics rave about the Alamo Drafthouse and how serious they take the viewing experience. They also apparently have a sense of humor. This is the trailer they show before the movie to let people know that using phones is absolutely not allowed (very, VERY NSFW).

What People Think of Us

2011-06-13T04:47:00.001-04:00

I was bouncing around a few internet bulletin boards reading the local gossip (a guilty pleasure) and I ran across these wonderful words describing how people perceive attorneys:

Post One -
"Lawyers are no good. They are why the Nation is in the shape that it is in. I have watched how they treat people in court. They defend the worthless and it doesnt matter who the victim is they will go down fighting for people who have raped sold drugs and have killed. Theres no honor in how they treat the victims of crimes. The good olboy system, all the Attorney's get in the back room and make deals. It is actually pretty crappy. I have heard some say if that individual stole my stuff they need to be hung. I guess its ok they steal the average Joe's stuff. Dump A-- should not have left it out. Lawyers are worthless."

Post Two -
"Don't think they [attorneys] are on drugs but they are responible for alot of crimes going unreported because people know how they will be treated in the courts by the Attorney's and Judges who are Attorney's. A convicted felons word will be take over a law abiding citizen or police officer. I got a speeding ticket and had to be in court and the Judge talked to this guy like he was a dog because he was upset that the case was being put off again and he was trying to explain that he had a family to support and needed to work and that he had already missed three days work to testify in a case where his house had been broken into. This is how the system treats the people for being honest and law abiding. Its all ok the Judge got paid over $100,000.00 a year and the Attorney will get paid by the tax payer merry christmas."

--------
Good to feel so loved . . .

Scalia on Congress' Ability to Write Precise Criminal Statutes

2011-06-11T17:13:00.000-04:00

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

----------

From: Sykes v. US

Strauss-Khan, Phones, & Computers

2011-06-10T14:23:00.000-04:00

A question came up in my comments when I checked them this morning:

I am very intrigued about a question related to the NY Strauss-Khan case. Police confiscated the man's phones and computer when he was arrested. His lawyer says messages left on these gadgets may contain sensitive information related to his defense, so he asks that prosecutors be barred from knowing what the messages say. What are the rules? Can the police go through his messages and then decide who has access? Who decides if prosecutors get access to the messages? What if the messages contain an indication of his guilt?

First, I'm sure his defense attorney is right. There is almost undoubtedly info on those phones and computers which the prosecution would love to have and the defense wants to keep from them.

Second, the thing which most likely determines the answer to this is how the police came into possession. If the phones came into possession as part of the search subsequent to arrest or were taken as the defendant checked into jail, then the police probably would have to get a search warrant to actually access the information in them. However, I suspect this is not how the police came into possession of the phones and computers (computers don't often fit in pockets). Most likely the police got the computers and phones as part of a search warrant. It would be a very shoddily written warrant which would call for the seizure of computers and phones, but not call for the search of the information in them. So, a police search of the data would be allowed. In fact, I can't think of any reason that computers would be seized except to search them.

However, there might be a restriction upon the officers' ability to look at the computer content. If the defendant was using the phone or computer to send and receive messages with his attorney there could be privileged information located on them. In such a case, the defendant could ask that the information not be usable by the prosecution; he could also ask the court to stop agents from the prosecution from looking at the information. The remedy here would be to have the judge look over everything in camera (by himself, in his office). As a practical matter, this may not be feasible. The judge is not a forensic computer expert. He may have to try and set a firewall between the prosecutors and their expert so that everything they find on the computer and want to hand over to the prosecution has to be given first to the judge and then, only after he approved it, forwarded to the prosecution.

CrimLaw News Wednesday

2011-06-08T16:02:00.000-04:00

1) If you mandate that the laws get lenient, police may arrest people before the law changes.

2) Japan has discovered a shocking thing: there's more crime in cities than in rural areas and criminals take advantage of situations.

3) Y'know, having spent 6 months there once, I can say that I don't think Sharm El-Sheik would be a bad place to wait for trial.

4) Peeping up skirts via a see-through stairway in an Ohio courthouse.

5) The Global Commission on Drug Policy says to legalize it all. Because that's worked so well with oxycontin, hydrocodone, subutex, xanax . . .

CrimLaw in the News

2011-06-07T16:37:00.000-04:00

1) The local paper in Powhatan, Virginia has discovered that when people are sentenced by juries that they get larger sentences than when they are sentenced by the judge.

2) Does the Virginia Department of Corrections have to pay for someone's gender change surgery if the person continues to try to mutilate himself into a female?

3) Kentucky is limiting the ability of its officers to arrest those who break the law.

4) Beating yourself up to get out of a ticket? Not worth the effort.

Why Change That Law (Part Duex)

2011-05-31T14:07:00.001-04:00

A while back I was reading through the new statutory changes (in place as of July 01) and found something which seemed like tweeking the statute just for tweeking's sake and when I posted it ya'll were kind enough to provide an explanation of why the statute was changed. So, I've got another one for you.

18.2-308.1(B) as currently constituted:

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony; however, if the person possesses any firearm within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

This is being changed into 18.2-308.1(B) & (C):

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony.

C. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be guilty of a Class 6 felony and sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

Okay. Got it figured out. Halfway through writing the post I realized that the same bill which does this also changes the list of violent felonies under 17.1-805 (for sentencing guidelines) so that the only violent felony under 18.2-308.1 is the newly created subsection C. So, if an 18 year old kid is dumb enough to bring his hunting rifle to school to show it to his buddies he may end up with a felony, but it won't be a mandatory minimum 5 year, violent felony.

Lawyers, Morality, & Law

2011-05-31T08:22:00.002-04:00

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That's more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things. Imagine a United States wherein anyone who has not been employed, in a taxable job, for 6 months out of a year is put on probation and if they are not employed for 6 months out of the next year they are executed. It would have several salutary effects. The would be far fewer people on the dole. There would be a strong incentive for people to be productive. Additionally, since people would have a strong incentive to not work under the table, a large portion of the underground economy would surface and be taxed. And all it would take is to kill those among the 13.7 currently unemployed in the U.S. who can't find and keep a job.

I understand the impetus behind the lawyers' thinking. We see the flaws in the legal system day after day after day. Day in and day out, it is difficult seeing morality through imperfect statutes, enforced by less than perfect officers, manipulated by lawyers, and interpreted by flawed judges. It is so much easier to put one's head down and say they are just rules, nothing more and nothing less. The very fact that we see the flaws in the trees leads us to deny that there is a forest.

And yet the forest exists.

In Memory

2011-05-30T01:05:00.001-04:00

Have You Gotten Your Justice Shed Yet?

2011-05-28T16:33:00.001-04:00

For Americans who are sick and tired of annoying technicalities like "due process" and "proof beyond a reasonable doubt" a video explaining how to set up your very own Justice Shed:

Negotiations at Their Best

2011-05-23T12:30:00.000-04:00

Prosecutor: "He shot him in the gut. I'll offer 3 years for maiming."

Defense Attorney: "Maiming!?! Nobody around here is going to convict him for shooting Johnny Smith."

Prosecutor: "Okay, what do you think he should be convicted of?"

Defense. Attorney: "Destruction of property. That was a pretty decent shirt Johnny was wearing. Nobody should have their property torn and stained like that.'

Disclaimers and the Bar

2011-05-14T12:07:00.002-04:00

A Richmond lawyer, Horace Hunter, is in the midst of a conflict with the Bar over whether he has to put a disclaimer on his website informing readers that the results he announces are not guarantees of future results. Horace is publishing occasional summaries of cases in which he was involved. I picked a sample of 7 of these and read them. They are in a basic press release format. A strong paragraph at the beginning identifies the victorious case and client and also makes it very clear that Horace is the attorney in the case. Then there is a short factual/philosophical/legal/tactical discussion. None of the summaries I read had anything confidential information in them. All of the summaries are published in a blog format under the moniker "This Week in Richmond Criminal Defense."

So, as far as I can tell, the only real complaint the Bar can have is the lack of a disclaimer. As you all know, I am a big believer in disclaimers and have had one on my blawg at least since 2006. In its current incarnation it states:

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 in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

Of course, my situation is different from Horace's situation. My blawg was meant to show things from my point of view. This has ranged from war stories to comments on news stories to goofy things that have caught my eye to analysis of laws and cases. It was never intended to get clients to walk into my office. Horace's posts are clearly meant as a type of press release and as a means to flesh out his website.

I understand that the ethics folks are interested in making sure that the public realizes that there is no guarantee that a result with one particular client, in front of one particular judge, in one particular jurisdiction will mean that other clients will get the same result. If I'd have been Horace, I would have probably put in a disclaimer at the bottom or side - confidant that most members of the public aren't going to read the boilerplate anyway. However, he has decided to make a principled stand based upon the 1st Amendment right to freedom of speech. Bravo. It is always good to see a person make a stand for something he believes in. It will be interesting to see how that eventually plays out.

An interesting question is whether a disclaimer is actually needed to inform the public about the nature of the information they are getting. The summaries are clearly on a law firm's website and about that law firm. They are written in the stilted, awkward format that press releases always have and are obviously self promoting of the lawyers in the firm. Granted, not all criminal defendants are the sharpest crayons in the box, but anyone computer savvy enough to get to the website and navigate to the case summaries should have enough brainpower to realize this is an advertisement. Does an obvious advertisement need something to point out it is one?

Personally, I view disclaimers more as a way to protect the attorney rather than the client. Would I put up a disclaimer in Horace's place? Sure, I would. Not because I thought the clients are too dumb to understand that I'm not going to advertise the cases with less than optimal results for the client or that they will be misled to believe I win every case. Not because the Bar has some arbitrary rule. No, I'd do it to protect my own hide. Would I actually expect any clients who came to my site to read the disclaimer? No. However, clients who lose complain to the Bar, file malpractice suits, or try to get a writ of habeas corpus. That disclaimer goes a long way toward neutralizing spurious claims that the things I published on the web misled the client into thinking she was going to win that robbery case with her DNA on the scene, video of her committing the offense, and a witness list against her that had 4 nuns in it.

New Virginia Criminal Laws

2011-05-11T11:34:00.000-04:00

Strange changes in the Gambling Law

2011-05-07T11:38:00.000-04:00

Virginia has put together all its legal changes and, as per usual, there's always one or two which don't make a lot of sense to me. The definition of illegal gambling has been changed as follows:

a. For the purposes of this subdivision and notwithstanding any provision in this section to the contrary, the making, placing, or receipt of any bet or wager of money or other thing of value shall include the purchase of a product, Internet access, or other thing, which purchase credits the purchaser with free points or other measurable units that may be (i) risked by the purchaser for an opportunity to win additional points or other measurable units that are redeemable by the purchaser for money ~~at the location where the product was purchased~~ or (ii) redeemed by the purchaser for money, and but for the free points or other measurable units, with regard to clauses (i) and (ii), the purchase of the product, Internet access, or other thing (a) would be of insufficient value in and of itself to justify the purchase or (b) is merely incidental to the chance to win money.

Obviously, this is done in an attempt to make internet gambling illegal. First, it makes the common sense correction of deleting the part which makes gambling only illegal if done at a physical location. The weird part is where it talks about purchasing iternet access of insufficient value to justify its purchase or incidental to the chance to win. I understand that they are trying to shut down internet gambling, but no one is overpaying for internet access as part of a coverup for gambling. Still, I think that the inclusion of "or other things" covers what they were trying to get to because the transfer of funds to an internet site for "credits" (or whatever a site calls them), which are basically worthless except for their value in gambling, seems to fall within that language.

I wish they were somewhat more precise in their language. "Other things" does leave open an argument that electronic credits are not things, but conceptualizations of potentialities; I'm sure those of you out there who are defense attorneys will find a simpler way to say that to a judge. They are not things because they have no physical embodiments outside of the ever-shifting electrons in any electronic brain system (that's a computer for those of you who have never read old science fiction).

On the other hand, "thing" is a broad catch-all word in English. It clearly does not have to denote a physical item. We've all seen the television show with the detective saying, "Here's the thing, I don't believe you." In that example, "thing" is referring to a belief or state of mind, not a physical item. As well, we'd all understand if Steve Jobs were on a stage talking about the iPhone 6 and he said something like ". . . and our support website for the phone is a thing unto itself." Therefore, a website, and by inference other things on the web, is a thing.

[addendum] After putting some thought into it, I think what the General Assembly meant by "internet access" is probably access to a particular website. The purpose is probably to keep people from paying $5,000 for a week's access to "Texas Hold'em Heaven." As such, the language used fails because "internet access" does not cannote, in normal usage, the access of a single site, but the access of the internet in its entirety. However, I think that "other things" also covers site access.

How the U.K. Views Americans

2011-05-02T09:48:00.002-04:00

Sometimes, the best way to understand how another group of people perceives you is to watch portrayals in popular media. It's there where people let slip what they actually think.

As a fan of science fiction, I've been watching the new season of Doctor Who. Consequently, I've seen a couple scenes which might give a clue as to what the folks living on the islands on the other side of the Atlantic think about us.

[For those of you who don't know, the Doctor is an alien who moves through time and space fighting evil aliens and solving problems. He usually travels with two or three humans.]

Scene One:

The Doctor has snuck into the Oval Office and is seated in the president's seat. About 10 Secret Service agents are standing with their pistols pointed at him. The Doctor is sitting there smugly saying something to the effect of, "Really? I just snuck into the most secure room in the world and you think you are going to shoot me?" At this point, one of the Doctor's companions (who has been watching) runs into the room shouting "They're Americans!!" The Doctor jumps out of the seat and says nervously, "Don't shoot! Definitely, don't shoot!"

Scene Two:

An American FBI agent is facing down an alien and asks it if it is armed. The alien answers back in an ominous tone, "We have manipulated you since fire and wheel. We need no weapons."

At that, the FBI agent draws his pistol and guns the alien down.

----------

Somehow, I'm getting the impression that we might be seen as a little gun happy.

Saturday Fun

2011-04-30T23:45:00.000-04:00

Just gonna have some fun today and post up a few things that caught my eye.