It's a Wonderful Life Done in 30 seconds by bunnies.
Sorry, Harvey is not in this one. And anyway, he's not really a bunny he's a pooka.
LvProCent
26 December 2004
Around the Web
1) CrimLaw Radio Style
2) Hey, I got linked in German. (twice)
3) I won't believe that the MSM is truly interested in blogs until I'm mentioned in the NYTimes, Washington Post, and Guardian.
4) Anonymous rape complaints.
5) To name change or not to name change, that is the question.
6) Prosecutorial misconduct from a PD's perspective.
7) Is the deck stacked in DUI cases?
8) Peremptory challenges.
9) Feds investigate a traffic court.
10) How are you supposed to take a shower without breaking the law?
11) Exploitation at strip clubs? Say it ain't so . . .
12) A federal judge stops a plea agreement and orders the prosecutors to prove it anyway. LvLaporte.
2) Hey, I got linked in German. (twice)
3) I won't believe that the MSM is truly interested in blogs until I'm mentioned in the NYTimes, Washington Post, and Guardian.
4) Anonymous rape complaints.
5) To name change or not to name change, that is the question.
6) Prosecutorial misconduct from a PD's perspective.
7) Is the deck stacked in DUI cases?
8) Peremptory challenges.
9) Feds investigate a traffic court.
10) How are you supposed to take a shower without breaking the law?
11) Exploitation at strip clubs? Say it ain't so . . .
12) A federal judge stops a plea agreement and orders the prosecutors to prove it anyway. LvLaporte.
24 December 2004
23 December 2004
Pardon? What Pardon?
Yesterday's theme of the day around the blawgosphere was how President Bush fails to use the pardon power in an effective and just manner:
Bush's stingy pardon practice
I Beg Your Pardon
80% of Recent Bush Pardons Were Convicted of White Collar Offenses
Bush the Grinch Pardons Few
Bush and the Pardon Power
Pardon Me, But Why?
MORE ON BUSH'S STINGINESS REGARDING PARDONS
I really don't think we are going to effect this administration's stand on this issue. To be sure, I see the reason that Presidential pardons should be used to balance out an unfair federal system where you can be sentenced for things you were found not guilty of, where long-standing doctrines like the "exculpatory no" have been abrogated so that even if the prosecution cannot get together enough evidence to accuse a defendant of the crime it was investigating it can comb through its records and if it finds an untruth charge the defendant with lying to a federal agent (see Martha Stewart), and where a person who is a lower level conspiree can get more time than a higher level conspiree because the lower level guy doesn't have information to sell in order to get less time. However, I don't see any administration wading into the criminal justice system and expending the time and political capital it would take to use the pardon power to correct these sort of systematic problems.
Given this, pardons strike me as always being entirely arbitrary. Can an arbitrary system ever be fair? No. Short of wholesale pardons there will always be those among the convicted who deserve a break. Political necessity will keep any president from giving too many pardons, whether they are deserved or not. The test is probably that the number of pardons will always be kept at a number low enough to fly below the media's radar (and thus avoiding the attention of the citizenry).
Whether it is arbitrary at 30+ pardons or 100+ doesn't really change anything. If it's not going to be used to fix the flaws in the system it's purely an exercise in emotions and/or politics. In other words, there will be "feel good" pardons (probably strategically announced around Christmas or Yom Kippur or Eid al-Adha) and pardons as an effect of being a member of the monied class. I would be very interested if anyone out there has a breakdown of how many of each of these two types there were in the Clinton administration and how many in Bush the Younger's administration.
I think Bush probably thinks he is on the right path. He shows contentment in his convictions (I'd say courage but you need serious opposition for courage) and seems to have an abiding trust-belief that systems work, whether they be legislative or judicial or administrative; how often have we seen him step up after a decision has been made by any organ of the government and oppose it? Therefore, it's not all that surprising that he's not disturbing judicial decisions made by others.
Would I like to see the current administration give out more pardons? Yes. The application of an arbitrary method to reach equity in some cases does justice for at least those few souls.
But it ain't gonna happen.
Bush's stingy pardon practice
I Beg Your Pardon
80% of Recent Bush Pardons Were Convicted of White Collar Offenses
Bush the Grinch Pardons Few
Bush and the Pardon Power
Pardon Me, But Why?
MORE ON BUSH'S STINGINESS REGARDING PARDONS
---------- ---------- ----------
I really don't think we are going to effect this administration's stand on this issue. To be sure, I see the reason that Presidential pardons should be used to balance out an unfair federal system where you can be sentenced for things you were found not guilty of, where long-standing doctrines like the "exculpatory no" have been abrogated so that even if the prosecution cannot get together enough evidence to accuse a defendant of the crime it was investigating it can comb through its records and if it finds an untruth charge the defendant with lying to a federal agent (see Martha Stewart), and where a person who is a lower level conspiree can get more time than a higher level conspiree because the lower level guy doesn't have information to sell in order to get less time. However, I don't see any administration wading into the criminal justice system and expending the time and political capital it would take to use the pardon power to correct these sort of systematic problems.
Given this, pardons strike me as always being entirely arbitrary. Can an arbitrary system ever be fair? No. Short of wholesale pardons there will always be those among the convicted who deserve a break. Political necessity will keep any president from giving too many pardons, whether they are deserved or not. The test is probably that the number of pardons will always be kept at a number low enough to fly below the media's radar (and thus avoiding the attention of the citizenry).
Whether it is arbitrary at 30+ pardons or 100+ doesn't really change anything. If it's not going to be used to fix the flaws in the system it's purely an exercise in emotions and/or politics. In other words, there will be "feel good" pardons (probably strategically announced around Christmas or Yom Kippur or Eid al-Adha) and pardons as an effect of being a member of the monied class. I would be very interested if anyone out there has a breakdown of how many of each of these two types there were in the Clinton administration and how many in Bush the Younger's administration.
I think Bush probably thinks he is on the right path. He shows contentment in his convictions (I'd say courage but you need serious opposition for courage) and seems to have an abiding trust-belief that systems work, whether they be legislative or judicial or administrative; how often have we seen him step up after a decision has been made by any organ of the government and oppose it? Therefore, it's not all that surprising that he's not disturbing judicial decisions made by others.
Would I like to see the current administration give out more pardons? Yes. The application of an arbitrary method to reach equity in some cases does justice for at least those few souls.
But it ain't gonna happen.
Mystery Solved
Okay, the mystery of the quiz is now solved. The young woman in the photo is Ashlee Simpson (thanks to Anon for the tip). She's clearly of age so there is no problem here.
How, you ask could I have not recognized a pop star of such renown? Of course I knew who she is. Who hasn't heard about the SNL lipsyncing fiasco? It got its own parody site and reactions from famous stars. It even got her an offer to come back to SNL and try again.
Still, the hair color change led me astray. She changed from a pretty blonde to a not so pretty Joan Jett imitator. I assume she is paying royalties to Ms. Jett for infringing on the look; now if she could only get a loan of the talent (of course I haven't heard Joan Jett in about 10 years - I am assuming there is still talent).
How, you ask could I have not recognized a pop star of such renown? Of course I knew who she is. Who hasn't heard about the SNL lipsyncing fiasco? It got its own parody site and reactions from famous stars. It even got her an offer to come back to SNL and try again.
Still, the hair color change led me astray. She changed from a pretty blonde to a not so pretty Joan Jett imitator. I assume she is paying royalties to Ms. Jett for infringing on the look; now if she could only get a loan of the talent (of course I haven't heard Joan Jett in about 10 years - I am assuming there is still talent).
People's Opinion of Lawyers
I spend Tuesday night and Wednesday morning trying to find the correct form for a habeas corpus ad subjiciendum for Virginia. I am all over the web and through all my books but all I can find are forms from other States and the federal system. Finally, I give up and go to the courthouse to check the law library.
I'm dressed in a dark blue-gray sweatshirt and an old pair of jeans which are about 5" too long and scrunch up down by the shoes (I had had no intention of going to the courthouse that day). As I come in the deputy razzes me, telling me that I "look like a defendant." I joke a little with him but think nothing of it and head to the library.
After another 45 minutes I am absolutely frustrated. I can find copies of the federal form and West Virginia's form but all I can find which is Virginia specific is a book which has a small section talking - in vague terms - about Virginia habeas. The librarian comes out and asks what I'm looking for. I tell her and she offers to help but I decline saying that I've pretty much looked everywhere from WestLaw to the internet to all the books I can find. After she goes back to her office I pull another book off the shelf and start looking through it.
At this point a lady who was sitting at the next table walks up: "You gotta keep looking. I know what it's like to be frustrated. I get frustrated when I can't find things too but I sit and think up another way and then I find stuff. I always look up things myself - you can't trust the shysters."
I'm dressed in a dark blue-gray sweatshirt and an old pair of jeans which are about 5" too long and scrunch up down by the shoes (I had had no intention of going to the courthouse that day). As I come in the deputy razzes me, telling me that I "look like a defendant." I joke a little with him but think nothing of it and head to the library.
After another 45 minutes I am absolutely frustrated. I can find copies of the federal form and West Virginia's form but all I can find which is Virginia specific is a book which has a small section talking - in vague terms - about Virginia habeas. The librarian comes out and asks what I'm looking for. I tell her and she offers to help but I decline saying that I've pretty much looked everywhere from WestLaw to the internet to all the books I can find. After she goes back to her office I pull another book off the shelf and start looking through it.
At this point a lady who was sitting at the next table walks up: "You gotta keep looking. I know what it's like to be frustrated. I get frustrated when I can't find things too but I sit and think up another way and then I find stuff. I always look up things myself - you can't trust the shysters."
22 December 2004
Statutory Rape
It has been suggested that the quiz I had taken and posted here was evil and tried to take advantage of my male nature by directing me to a 13 year old girl - Jamie Lynn (Spears). Here are the two side by side:
I don't think they're the same person but I might be wrong.
[BTW (and totally off topic) Ladies, if you want to absolutely mesmerize fools like me wear the contacts which make your eyes bright blue like this (or the green ones). I stare like an idiot and pretty much agree with anything the lady asks of me. (at least in the short term)]
Anyway, with Mister DA talking about statutory rape laws it reminded of an unusual event in my life:
It all began while I was studying for the Bar exam. I was self-studying (which I do not recommend) using MicroMash. For some reason the MBE section kept going back to statutory rape over and over. The section kept speaking about it in general terms - not Virginia specific. However, being in Bar study mode I freaked and looked up all the pertinent Virginia statutes.
So the Bar comes. On the evening of the last day a group of W&L law grads meet in Lexington and sit around in the local bar getting soused (as everyone must after the exam). At one point the conversation turns to kidding one of the guys about something to do with younger women. My brain contained the knowledge but my sense of propriety had been killed by the combination of relief that it was over and a healthy dose of beer. I blurt out, "Hey, don't worry about it man. It's only rape if she's under 13. 13-15 it's carnal knowledge and if you're charged all you have to do is marry the girl and the charge will go away."
The woman sitting at our table looked at me as if I'd grown a horn on my head: "How do you know that?" At this point the booze chose to shut down my ability to answer questions quickly and I sat there dumbfounded and kinda shrugged my shoulders. She moved off to another table with a strange look the whole way. Of course, it didn't even register with the guys at the table; they all acted as if I had just stated something that was common knowledge. Still, to this day I'm convinced that if I accomplished nothing else in law school, I managed to convince one fellow student that I was a perv. Not a goal when I got to the school but I think it was probably one of my more memorable accomplishments.
I don't think they're the same person but I might be wrong.
[BTW (and totally off topic) Ladies, if you want to absolutely mesmerize fools like me wear the contacts which make your eyes bright blue like this (or the green ones). I stare like an idiot and pretty much agree with anything the lady asks of me. (at least in the short term)]
Anyway, with Mister DA talking about statutory rape laws it reminded of an unusual event in my life:
It all began while I was studying for the Bar exam. I was self-studying (which I do not recommend) using MicroMash. For some reason the MBE section kept going back to statutory rape over and over. The section kept speaking about it in general terms - not Virginia specific. However, being in Bar study mode I freaked and looked up all the pertinent Virginia statutes.
So the Bar comes. On the evening of the last day a group of W&L law grads meet in Lexington and sit around in the local bar getting soused (as everyone must after the exam). At one point the conversation turns to kidding one of the guys about something to do with younger women. My brain contained the knowledge but my sense of propriety had been killed by the combination of relief that it was over and a healthy dose of beer. I blurt out, "Hey, don't worry about it man. It's only rape if she's under 13. 13-15 it's carnal knowledge and if you're charged all you have to do is marry the girl and the charge will go away."
The woman sitting at our table looked at me as if I'd grown a horn on my head: "How do you know that?" At this point the booze chose to shut down my ability to answer questions quickly and I sat there dumbfounded and kinda shrugged my shoulders. She moved off to another table with a strange look the whole way. Of course, it didn't even register with the guys at the table; they all acted as if I had just stated something that was common knowledge. Still, to this day I'm convinced that if I accomplished nothing else in law school, I managed to convince one fellow student that I was a perv. Not a goal when I got to the school but I think it was probably one of my more memorable accomplishments.
21 December 2004
A Funny Thing Happened on the Way To the Jail
Sometimes weird things just happen:
I walk into the front door of the local jail. The deputy looks up and hits the door button, the door buzzes open, and I walk into the front office of the jail. As I walk into the office the deputy is on the phone. Suddenly the deputy says, "OK", slams the phone down, grabs his keys, runs past me, lets himself out of the office by key, and runs full tilt out the front door of the jail. I'm left standing all by my lonesome in the front office of the jail for at least 10 minutes.
An older lady walks up to the office's front window and hits the button on the speaker box, trying to talk to me. She doesn't realize the button is just there as a buzzer to let someone know there's a person at the window and that I can't hear a word she's saying as long as she holds the button down because it is causing a constant, loud buzzing. I try to wave at her to get her to take her finger off the button but it doesn't work. Finally, after a minute or so of watching her lips move while this annoying buzzing continues, I walk up to the window and yell at her to take her finger off the button. As soon as she does that we can even hear each other without the intercom and I tell her I 'm waiting for the deputy just like she is.
A few minutes later a major in the sheriff's department comes up to the outside door. He can't get in because he doesn't have the key. So he motions to me and after a couple tries I get the button to open the door. The he asks me if I was helped before the deputy left. I tell him "no" and he looks at the computer and log books. I think he's trying to figure out exactly what he's supposed to do to get me in to my clients.
At that moment the deputy comes walking back in huffing and puffing. The major asks, "Was that him?" The deputy replies, "Yes." Then the major leaves and the deputy processes me in. He won't tell me what was going on and I didn't see anything in the news about any jailbreaks - I'm still clueless about what was happening.
Still, for about ten minutes yesterday I was the person who was sitting in the office which controls the front door of the jail. Me, all by my self - a Defense attorney in control of the front door of the jail.
I walk into the front door of the local jail. The deputy looks up and hits the door button, the door buzzes open, and I walk into the front office of the jail. As I walk into the office the deputy is on the phone. Suddenly the deputy says, "OK", slams the phone down, grabs his keys, runs past me, lets himself out of the office by key, and runs full tilt out the front door of the jail. I'm left standing all by my lonesome in the front office of the jail for at least 10 minutes.
An older lady walks up to the office's front window and hits the button on the speaker box, trying to talk to me. She doesn't realize the button is just there as a buzzer to let someone know there's a person at the window and that I can't hear a word she's saying as long as she holds the button down because it is causing a constant, loud buzzing. I try to wave at her to get her to take her finger off the button but it doesn't work. Finally, after a minute or so of watching her lips move while this annoying buzzing continues, I walk up to the window and yell at her to take her finger off the button. As soon as she does that we can even hear each other without the intercom and I tell her I 'm waiting for the deputy just like she is.
A few minutes later a major in the sheriff's department comes up to the outside door. He can't get in because he doesn't have the key. So he motions to me and after a couple tries I get the button to open the door. The he asks me if I was helped before the deputy left. I tell him "no" and he looks at the computer and log books. I think he's trying to figure out exactly what he's supposed to do to get me in to my clients.
At that moment the deputy comes walking back in huffing and puffing. The major asks, "Was that him?" The deputy replies, "Yes." Then the major leaves and the deputy processes me in. He won't tell me what was going on and I didn't see anything in the news about any jailbreaks - I'm still clueless about what was happening.
Still, for about ten minutes yesterday I was the person who was sitting in the office which controls the front door of the jail. Me, all by my self - a Defense attorney in control of the front door of the jail.
20 December 2004
Criminal Intent in Virginia
Jack, of CrimProfBlog, asks - in relation to my Worst Attorney post - the following questions:
Virginia's criminal law is a hodge-podge of basic crimes which are defined by common law and various statutory patches which have been put in place over the years by the Legislature. For instance this is the basic grand larceny statute:
As to a statutory requirement of mens rea? If you can find one you would become an immensely popular person among Virginia's Defense bar. The Virginia Supreme Court has flatly stated that felony criminal statutes are strict liability statutes if they did not exist at common law and the Legislature included no intent in the statute. (see this post)
1. Doesn't larceny in your jurisdiction require mens rea of intent to steal or the like?"[B]ecause Code § 18.2-117 is a statutory, not a common law crime, proof of intent to permanently deprive is not an element necessary to sustain a conviction for its violation." Ketchum v. Commonwealth, 12 Va App 258, 262 (1991). This is the prevailing interpretation in Virginia and in order to get there the Virginia Court of Appeals had to ignore two (non-binding) cases from the 4th Federal Circuit and construe a 1985 case from its own court, Molash v. Commonwealth, 3 Va. App. 243 (1986), in a strained manner. Still, it's the law.
2. Doesn't the fact that failure to return within five days is only prima facie evidence of larceny make clear that failure to return is not conclusive evidence?So I had thought. However, a realistic interpretation of these prima facie assumption statutes is that they shift the burden entirely to the Defendant to prove his innocence; I know appellate courts will offer some sophistic difference here and claim the burden still lies with the prosecutor but that's just not the reality in the courtroom. Still, I thought a I had an affirmative defense that would prove my client's actual innocence (impossibility of performance).
3. Doesn't your criminal code have a catch-all requirement of mens rea in it somewhere?Criminal code? What be this criminal code?
Virginia's criminal law is a hodge-podge of basic crimes which are defined by common law and various statutory patches which have been put in place over the years by the Legislature. For instance this is the basic grand larceny statute:
Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.Notice that it doesn't define larceny. There's a lot of this sort of thing in Virginia's statutes.
As to a statutory requirement of mens rea? If you can find one you would become an immensely popular person among Virginia's Defense bar. The Virginia Supreme Court has flatly stated that felony criminal statutes are strict liability statutes if they did not exist at common law and the Legislature included no intent in the statute. (see this post)
Happy Season!
I got my Happy Season! card from my law school.
If you're not going to recognize what the season is, why send the card?
At least it's not as bad as the local TV ad I saw wherein the employees wished us all "a Happy Christmas, Hanukkah, Kwanza, or Ramadan - whichever holiday you celebrate." I about hit the ceiling. If you are going to be Uber-PC at least make sure that you know of what you speak.
First, Ramadan is a floating season and this year it wasn't in December; this year it started on 16 October and ended with Eid al-Fitr on 14 November. And technically it's not a holiday, it's a fast (although if you've seen the nightly parties in Middle Eastern countries during Ramadan you might wonder).
Second, if you are trying to hit major religious seasons such as Christmas and Ramadan you might want to substitute Yom Kippur for Hanukkah. Of course, it was on September 25 this year so it probably wouldn't fit.
Third, Kwanza. As best I can make it out Kwanza is a philosophical-societal-historical bonding holiday. As such it could fit with the others in a manner. But it's not a religious holiday so why mention it with them unless there is an underlying assertion that the three religious holidays mentioned are of faiths which exclude those who celebrate Kwanza? It is a disturbing undercurrent.
Yeah, I know, I shouldn't let these things worry at me but they do. I guess I am flawed. (in case you hadn't already noticed)
But at least I didn't get this upset.
A Haiku
f/k/a has dedicated a haiku to yours truly:
Now I can spend the next six months trying to figure it out. A shame it wasn't a Tanka so I could get a couple of lines analysis on the first three. Not that they ever really helped this guy's poor moribund western mind. Strange, I can wrap my mind around things like Sufi poetry but the Japanese always stump me . . .
[addendum] My brother comments:
for Ken Lammers at CrimLawThanks.
bitter cold
the bell ringer --
peppermint breath
Tom Painting,
The Heron's Nest V:12
Now I can spend the next six months trying to figure it out. A shame it wasn't a Tanka so I could get a couple of lines analysis on the first three. Not that they ever really helped this guy's poor moribund western mind. Strange, I can wrap my mind around things like Sufi poetry but the Japanese always stump me . . .
[addendum] My brother comments:
Think about it. You've got a stinging sharp wit, and you expose only too much with ruthless efficiency - thus the first two lines. The third line just sums it up in a kawai (cute) way. I think you got pegged! ^_^Ummm . . . er . . . Thanks?
With Thanks to Blonde Justice
I took some random quiz I saw up over at Blonde Justice and got this result:
Not sure who she is but I think I can live with the result.
Not sure who she is but I think I can live with the result.
18 December 2004
Binge Drinking
Remember when "binge drinking" actually meant binge drinking? You know, back before the neo-prohibs, insurance companies, colleges, &cetera began to cheat in their definitions in order to make drinking 4-5 beers sound like a bad thing.
Here's a page which talks about the difference.
Here's a page which talks about the difference.
17 December 2004
Name that Crime
Pretend you are a prosecutor: What crime do you charge?
Pretend you are a Defense attorney: What defense to that crime?
(I expect plenty of comments from law students here. You all should be able to do this in your sleep having just finished finals.)
Facts:
A husband and wife are traveling by car from Key West to Boston. After almost twenty-four hours on the road, they're too tired to continue, and they decide to stop for a rest. They stop at a nice hotel and take a room, but they only plan to sleep for four hours and then get back on the road.
When they check out four hours later, the desk clerk hands them a bill for $350.
The man explodes and demands to know why the charge is so high. He tells the clerk although it's a nice hotel, the rooms certainly aren't worth $350.
When the clerk tells him $350 is the standard rate, the man insists on speaking to the Manager.
The Manager appears, listens to the man, and then explains that the hotel has an Olympic-sized pool and a huge conference center that were available for the husband and wife to use.
"But we didn't use them," the man complains.
"Well, they are here, and you could have," explains the Manager. He goes on to explain they could have taken in one of the shows for which the hotel is famous. "The best entertainers from New York, Hollywood, and Las Vegas perform here," the Manager declares.
"But we didn't go to any of those shows," complains the man again.
"Well, we have them, and you could have," the Manager replies.
No matter what facility the Manager mentions, the man replies, "But we didn't use it!"
The Manager remains unmoved, and eventually the man gives up and agrees to pay. He writes a check and gives it to the Manager.
The Manager is surprised when he looks at the check. "But sir," he says, "this check is only made out for $50."
"That's right," says the man. "I charged you $300 for sleeping with my wife."
"But I didn't!" exclaims the Manager.
"Well," the man replies, "she was here, and you could have."
Pretend you are a Defense attorney: What defense to that crime?
(I expect plenty of comments from law students here. You all should be able to do this in your sleep having just finished finals.)
Facts:
A husband and wife are traveling by car from Key West to Boston. After almost twenty-four hours on the road, they're too tired to continue, and they decide to stop for a rest. They stop at a nice hotel and take a room, but they only plan to sleep for four hours and then get back on the road.
When they check out four hours later, the desk clerk hands them a bill for $350.
The man explodes and demands to know why the charge is so high. He tells the clerk although it's a nice hotel, the rooms certainly aren't worth $350.
When the clerk tells him $350 is the standard rate, the man insists on speaking to the Manager.
The Manager appears, listens to the man, and then explains that the hotel has an Olympic-sized pool and a huge conference center that were available for the husband and wife to use.
"But we didn't use them," the man complains.
"Well, they are here, and you could have," explains the Manager. He goes on to explain they could have taken in one of the shows for which the hotel is famous. "The best entertainers from New York, Hollywood, and Las Vegas perform here," the Manager declares.
"But we didn't go to any of those shows," complains the man again.
"Well, we have them, and you could have," the Manager replies.
No matter what facility the Manager mentions, the man replies, "But we didn't use it!"
The Manager remains unmoved, and eventually the man gives up and agrees to pay. He writes a check and gives it to the Manager.
The Manager is surprised when he looks at the check. "But sir," he says, "this check is only made out for $50."
"That's right," says the man. "I charged you $300 for sleeping with my wife."
"But I didn't!" exclaims the Manager.
"Well," the man replies, "she was here, and you could have."
Needs a Good Personal Injury Lawyer
I suspect that Mr. Kringle will need a good PI attorney:
Contact at:
Kris Kringle
P.O. Box 1
North Pole
Contact at:
Kris Kringle
P.O. Box 1
North Pole
16 December 2004
Around the Web
1) Inventions from prisoners - I'm doubtful about a number of these but it is interesting.
2) Okay, if you're gay and you choose to come to the law school which is probably the most conservative in the top 25, at a University which basically shares a campus with the Virginia Military Institute, a University named after General Lee, a University in a small rural Southern town, a law school which always has a number of military veterans enrolled, and then you start posting fliers around the law school attacking the military while troops are in the field risking their lives - do you expect your quality of life to be great? This guy files suit in Virginia and he will be crushed so fast . . .
Look, there was an openly gay male at W&L Law while I was there. We all knew it and I never saw him get the kind of treatment described in the article. I suspect there was a lot more provocation than the article presents.
3) Everything you ever wanted to know about the Lindbergh kidnapping.
4) Air Marshals and the "Kill Me First" dress code.
5) PD's are trying desperately to intervene in a case where an inmate has fired them and hired a private attorney to press for his execution.
6) Is having to urinate a valid reason to not testify?
7) How does the head of your local law enforcement agency stack up? Is he catching drug dealers in his own front yard? Or perhaps, is he rescuing hamsters from rodent-nappers?
2) Okay, if you're gay and you choose to come to the law school which is probably the most conservative in the top 25, at a University which basically shares a campus with the Virginia Military Institute, a University named after General Lee, a University in a small rural Southern town, a law school which always has a number of military veterans enrolled, and then you start posting fliers around the law school attacking the military while troops are in the field risking their lives - do you expect your quality of life to be great? This guy files suit in Virginia and he will be crushed so fast . . .
Look, there was an openly gay male at W&L Law while I was there. We all knew it and I never saw him get the kind of treatment described in the article. I suspect there was a lot more provocation than the article presents.
3) Everything you ever wanted to know about the Lindbergh kidnapping.
4) Air Marshals and the "Kill Me First" dress code.
5) PD's are trying desperately to intervene in a case where an inmate has fired them and hired a private attorney to press for his execution.
6) Is having to urinate a valid reason to not testify?
7) How does the head of your local law enforcement agency stack up? Is he catching drug dealers in his own front yard? Or perhaps, is he rescuing hamsters from rodent-nappers?
Top 12 Homicides
I have no idea if this is real or fake but it's an interesting read:
FBI Homicide Investigations Unit's Top 12 Homicides of 2003.
FBI Homicide Investigations Unit's Top 12 Homicides of 2003.
15 December 2004
The World's Worst Attorney
How could I not win this case?
On the 7th of October my client rented an automobile. The automobile was to be returned on the 9th of October at 12:30 p.m.
Client was arrested on the morning of the 9th. The capias was actually served on him at 9:05 a.m. which means he had already been in custody for some time prior to that. Obviously, the car didn't get returned and Client was charged under this statute:
I stand up and argue (1) that it was impossible for my client to return the car and (2) because my client was arrested prior to the time of return it is impossible to show an intent not to return the car.
The judge and I then engage in a discussion over whether or not the statute requires specific intent. The judge asserts that the fact the words "willfully or wantonly refuse to return" are not included in the statute the prosecutor doesn't have to show specific intent. I counter by saying there has been no showing of intent at all, not even the most generalized intent to do something bad. The judge is not with me so I move on to the other argument.
I point out it is impossible for my client to have returned the vehicle. The prosecutor gets up and quotes a case which states that while legal impossibility is a defense, factual impossibility is not. The judge agrees that this case is not a legal impossibility but a factual one. I point out to the judge that the case the prosecutor is citing is a conspiracy case which basically says if the police intervene to keep the conspiracy from reaching fruition it does not mean someone is not guilty of conspiracy and that the case is not appropriately applied.
The judge listens politely and then finds my client guilty.
How? I have no idea.
On the 7th of October my client rented an automobile. The automobile was to be returned on the 9th of October at 12:30 p.m.
Client was arrested on the morning of the 9th. The capias was actually served on him at 9:05 a.m. which means he had already been in custody for some time prior to that. Obviously, the car didn't get returned and Client was charged under this statute:
18.2-117: If any person comes into the possession as bailee of any animal, aircraft, vehicle, boat or vessel, and fail to return the same to the bailor, in accordance with the bailment agreement, he shall be deemed guilty of larceny thereof and receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The failure to return to the bailor such animal, aircraft, vehicle, boat or vessel, within five days from the time the bailee has agreed in writing to return the same shall be prima facie evidence of larceny by such bailee of such animal, aircraft, vehicle, boat or vessel.The prosecutor had the owner of the rental agency come up and testify to the fact that the car was rented and not returned. I introduce the capias paperwork showing the 9:05 a.m. arrest. Client has been in jail on the other charge since the capias was served.
I stand up and argue (1) that it was impossible for my client to return the car and (2) because my client was arrested prior to the time of return it is impossible to show an intent not to return the car.
The judge and I then engage in a discussion over whether or not the statute requires specific intent. The judge asserts that the fact the words "willfully or wantonly refuse to return" are not included in the statute the prosecutor doesn't have to show specific intent. I counter by saying there has been no showing of intent at all, not even the most generalized intent to do something bad. The judge is not with me so I move on to the other argument.
I point out it is impossible for my client to have returned the vehicle. The prosecutor gets up and quotes a case which states that while legal impossibility is a defense, factual impossibility is not. The judge agrees that this case is not a legal impossibility but a factual one. I point out to the judge that the case the prosecutor is citing is a conspiracy case which basically says if the police intervene to keep the conspiracy from reaching fruition it does not mean someone is not guilty of conspiracy and that the case is not appropriately applied.
The judge listens politely and then finds my client guilty.
How? I have no idea.
Confronted
So, I'm leaving my office yesterday to go to court. I close the office door and turn to go down the stairs. When I'm half-way down the psychiatrist who has the office at the bottom of the stairs steps out of her office and stands at the bottom of the stairs, facing me.
"Do you represent prostitutes?"
"Ummmm . . . no."
"Well these two [pause] women came by your office a couple days ago looking for you and they were dressed . . . [look of slight horror]"
"That was my client's mother and girlfriend."
"Really? Because they were dressed very provocatively. One of them had nothing on from here to here." [motioning from about where low-cut jeans would end to where a high halter top would start]
"Yes, that's them. Hopefully they won't dress like that for court."
"You're sure they weren't prostitutes?"
"Yes, I've represented that kind of client before and generally she'll be broke and won't be able to get hold of a car to come here."
The psychiatrist looks none too pleased with that answer and gives me a strange look before heading up the stairs to parts unknown.
And then I leave for court.
"Do you represent prostitutes?"
"Ummmm . . . no."
"Well these two [pause] women came by your office a couple days ago looking for you and they were dressed . . . [look of slight horror]"
"That was my client's mother and girlfriend."
"Really? Because they were dressed very provocatively. One of them had nothing on from here to here." [motioning from about where low-cut jeans would end to where a high halter top would start]
"Yes, that's them. Hopefully they won't dress like that for court."
"You're sure they weren't prostitutes?"
"Yes, I've represented that kind of client before and generally she'll be broke and won't be able to get hold of a car to come here."
The psychiatrist looks none too pleased with that answer and gives me a strange look before heading up the stairs to parts unknown.
And then I leave for court.
Admitting that Police Harass
AHA!!! Finally, I have proof - PROOF I SAY - that police really are out there harassing people for no good reason.
Can CBS be Trusted for Anything?
Victim of identity fraud (ID probably taken at CBS):
"So for all I know Dan Rather could be buying cars as we speak."
LvOK@VC
"So for all I know Dan Rather could be buying cars as we speak."
LvOK@VC
14 December 2004
Around the Web
1) The Supreme Court needs to make a decision soon before Professor Berman explodes.
2) Can an officer tall a drunk guy to get in his car and then charge him with DUI?
3) "[W]hy should the defense lawyer, and no one else, be the one to take a pay cut when a [capital] case costs too much?"
4) "Last week, surveillance cameras caught a man exposing himself to shoppers in the Value City store in Latonia.
Police say they've identified the flasher, but Kentucky law says they can't charge him with the misdemeanor because no officer saw him do it and there are very few exceptions to that law."
5) Mugged by two pregnant ladies?
6) A libertarian in favor of more criminal laws.
7) "The 8-to-0 decision . . . overturned a ruling by the Florida Supreme Court that a lawyer who concedes a defendant's guilt, for whatever reason, in the absence of explicit authorization, has deprived the client of the effective assistance of counsel." LvBashman
8) C&F seems shocked that everything is illegal (at least under federal law).
9) I'm a PD's plan for the next time an officer accuses her of DUI.
10) Charging Greenpeace with attempting to board a ship under sail and solicit sailors to go to a brothel.
11) Should the death penalty be abandoned because procedural errors guarantee an innocent will be (and probably has been) killed by the State?
12) Imagine having to explain this one to your Defense attorney or telling it to your cellmate:
2) Can an officer tall a drunk guy to get in his car and then charge him with DUI?
3) "[W]hy should the defense lawyer, and no one else, be the one to take a pay cut when a [capital] case costs too much?"
4) "Last week, surveillance cameras caught a man exposing himself to shoppers in the Value City store in Latonia.
Police say they've identified the flasher, but Kentucky law says they can't charge him with the misdemeanor because no officer saw him do it and there are very few exceptions to that law."
5) Mugged by two pregnant ladies?
6) A libertarian in favor of more criminal laws.
7) "The 8-to-0 decision . . . overturned a ruling by the Florida Supreme Court that a lawyer who concedes a defendant's guilt, for whatever reason, in the absence of explicit authorization, has deprived the client of the effective assistance of counsel." LvBashman
8) C&F seems shocked that everything is illegal (at least under federal law).
9) I'm a PD's plan for the next time an officer accuses her of DUI.
10) Charging Greenpeace with attempting to board a ship under sail and solicit sailors to go to a brothel.
11) Should the death penalty be abandoned because procedural errors guarantee an innocent will be (and probably has been) killed by the State?
12) Imagine having to explain this one to your Defense attorney or telling it to your cellmate:
"[A] group of men attempted to burglarize [a] home, pointing a gun at the kids.They ran off and were caught later. LvLaporte
The children happened to be playing a video game called Grand Theft Auto at the time. The game has dozens of random police scanner messages, which blare out calls such as "This is the police! You’re surrounded!" . . . [T]he burglars heard that message and thought police were outside the door waiting for them.
Galveston County Asst DA Michael Elliott explained, "The police in the game were staying, 'Stop, we have you surrounded. This is the police.’ The burglar, unknowingly, thought this was the actual police and panicked ... being apprehended by Playstation."
13 December 2004
Devenpeck - Just Plain Bad Reasoning
You know, I'm not a member of the Cult of Scalia but I'm usually impressed by his opinions when I read them. Not this time.
Devenpeck v. Alford is a badly reasoned expansion of Whren's doctrine that courts will look the other way in clear violations of the constitutional guarantee against searches and seizures as long as an officer has reasonable articulable suspicion that there has been some vanishingly minor infringement upon some law.
The 9th Circuit tried to hold the officers in a case to their stated reason for arresting someone:
Cleaving hard to this mighty cornerstone of constitutional interpretation
The parade of horribles is actually kind of humorous. (1) Under the Circuit Court's standard the constitutionality of each arrest will be based upon the facts of that case. (2) We must rescue rookie officers from the humongous errors they will make in charging suspects (gotta be humongous errors because minor errors would be under the "closely related" part of the standard). (3) Officers will stop telling people what they are being arrested for. (4) Officers will start telling people they are being arrested for everything under the sun. I'm not even going to comment about how silly most of that is.
The new words which are carved in stone and descend from the mount are:
Hmmm . . . There's a statement which needs explaining. Am I actually saying that if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep (to remind me when to change oil) and could get a citation for "obstruction of view." Yes, I am.
First, here's the statute I would be violating (in pertinent part):
Nope. In Virginia we don't have a separate classification for "citations." "'Citation' means any summons, ticket, or other official document issued by a police officer for a traffic violation containing an order which requires the motorist to respond." (§ 46.2-944) The default punishment is a class 4 misdemeanor carrying no jail and a maximum $250 fine. (§ 46.2-113).
Well, if it carries no jail time surely I can't get arrested for it? Of course I can. In fact, the statute telling officers how to deal with my violation seems to refer to me as being under arrest.
Well, then the courts can always fall back on good, old Atwater. Under Atwater it isn't unconstitutional for me to be arrested for a very minor violation which carries no jail sentence. Without that constitutional burden I have no protection against violations of the law. There are no protections for citizens under the Virginia constitution. To say that in a more technically accurate manner:
So, you see, if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep.
Devenpeck v. Alford is a badly reasoned expansion of Whren's doctrine that courts will look the other way in clear violations of the constitutional guarantee against searches and seizures as long as an officer has reasonable articulable suspicion that there has been some vanishingly minor infringement upon some law.
The 9th Circuit tried to hold the officers in a case to their stated reason for arresting someone:
In this case, the Court of Appeals held that the probable-cause inquiry is further confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be "closely related" to the offense that the officer invoked.Altogether, a quite logical position. However, it endangers Whren because it could mean that an officer making a stop because the air freshener dangling from the rearview mirror would be held to the parameters of the reason given for the stop. This would completely void the reason for allowing Whren stops because it could keep the officer from expanding the parameters into zones which would otherwise be unconstitutional without cover from Whren. OMG!!!
Cleaving hard to this mighty cornerstone of constitutional interpretation
[the] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable causethe Court goes on to explain:
[The Circuit Court's] rule makes the lawfulness of an arrest turn upon the motivation of the arresting officer--eliminating, as validating probable cause, facts that played no part in the officer's expressed subjective reason for making the arrest, and offenses that are not "closely related" to that subjective reason.Because, as we all know, it would be terrible for police to arrest people on the basis of crimes the officers actually claim have been committed.
The parade of horribles is actually kind of humorous. (1) Under the Circuit Court's standard the constitutionality of each arrest will be based upon the facts of that case. (2) We must rescue rookie officers from the humongous errors they will make in charging suspects (gotta be humongous errors because minor errors would be under the "closely related" part of the standard). (3) Officers will stop telling people what they are being arrested for. (4) Officers will start telling people they are being arrested for everything under the sun. I'm not even going to comment about how silly most of that is.
The new words which are carved in stone and descend from the mount are:
Subjective intent of the arresting officer, however it is determined, is simply no basis for invalidating an arrest.So now we've moved beyond the Whren doctrine that a ridiculously minor infraction can be used to stop a car in order to shake down its occupants. Now we have a doctrine which states that even if the officer arrests someone on murder and rape charges, for which he doesn't even have reasonable articulable suspicion, the arrest is fine as long as a tail light was out on the car.
Hmmm . . . There's a statement which needs explaining. Am I actually saying that if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep (to remind me when to change oil) and could get a citation for "obstruction of view." Yes, I am.
First, here's the statute I would be violating (in pertinent part):
§ 46.2-1052 (A) Except as otherwise provided in this article or permitted by federal law, it shall be unlawful for any person to operate any motor vehicle on a highway with any sign, poster, colored or tinted film, sun-shading material, or other colored material on the windshield, front or rear side windows, or rear windows of such motor vehicle.Ah! You say: that's merely a citation!
Nope. In Virginia we don't have a separate classification for "citations." "'Citation' means any summons, ticket, or other official document issued by a police officer for a traffic violation containing an order which requires the motorist to respond." (§ 46.2-944) The default punishment is a class 4 misdemeanor carrying no jail and a maximum $250 fine. (§ 46.2-113).
Well, if it carries no jail time surely I can't get arrested for it? Of course I can. In fact, the statute telling officers how to deal with my violation seems to refer to me as being under arrest.
§ 46.2-936: Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall, except as otherwise provided in § 46.2-940, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Such time shall be at least five days after such arrest unless the person arrested demands an earlier hearing.But even if my reading of that statute is a little strained, worry not, having committed a misdemeanor in front of the officer (driving with the inability to see around that massive sticker) I am subject to arrest:
§ 19.2-81: [O]fficers may arrest, without a warrant, any person who commits any crime in the presence of the officer.And going even further, let's assume that my analysis of that section is incorrect - that "crime" is interpreted in a restrictive manner limited to such offenses as existed at common law (not a realistic way to expect it to be interpreted).
Well, then the courts can always fall back on good, old Atwater. Under Atwater it isn't unconstitutional for me to be arrested for a very minor violation which carries no jail sentence. Without that constitutional burden I have no protection against violations of the law. There are no protections for citizens under the Virginia constitution. To say that in a more technically accurate manner:
Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution.And you can bet that if the constitution of Virginia goes absolutely not one jot further than what is forced upon our courts by the federal constitution nothing so minor as a law would get in the way. My rights end at the edge of the federal constitution; Atwater renders the statutory arrest limitations dead letter law.
21 Va.App. 729
So, you see, if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep.
Peterson Verdict
Scott Peterson was sentenced to be killed by the State of California. The crowd outside did not cheer or react badly (at least not from Court TV's camera). Most seemed more concerned with waving at the camera as it panned past. 3-4 guys at one place were slapping hands but they were surrounded by cameras and it looked like they were doing it to get attention focused upon themselves.
DeathLaw - U.S.
1) 3 years for killing someone wounded on a battlefield.
2) 5 inmates in Marion, Indiana have been released because of overcrowding at the jail and committed murder.
3) Bidding on a house where people were killed.
4) How many times can you get your death sentence overturned before the State gives up?
5) Sometimes the law cannot be fixed quickly enough to get a death sentence.
2) 5 inmates in Marion, Indiana have been released because of overcrowding at the jail and committed murder.
3) Bidding on a house where people were killed.
4) How many times can you get your death sentence overturned before the State gives up?
5) Sometimes the law cannot be fixed quickly enough to get a death sentence.
DeathLaw - World
1) Libya is lifting 6 death penalties and will restrict those crimes which are eligible.
2) Murder by cricket.
3) The Philippines pays blood money to keep some of its workers from being killed in Saudia.
4) Senegal gets rid of the death penalty and Italy is happy about it.
5) "Daso Adamu was acquitted by the Upper Sharia court in Ningi on Thursday after the judge, Yusuf Suleiman, ruled that her being pregnant was not enough evidence to warrant a sentence that she be stoned to death.
“The court faulted the lower court’s judgement, saying that since Daso became pregnant within two years of her divorce it was wrong to assume the pregnancy was illegal because there is the possibility that the pregnancy was from her former husband”, defence counsel Abdulkadir Suleiman said." Something wrong with the biology there but I'm not telling (and you'd best hold your tongue as well).
2) Murder by cricket.
3) The Philippines pays blood money to keep some of its workers from being killed in Saudia.
4) Senegal gets rid of the death penalty and Italy is happy about it.
5) "Daso Adamu was acquitted by the Upper Sharia court in Ningi on Thursday after the judge, Yusuf Suleiman, ruled that her being pregnant was not enough evidence to warrant a sentence that she be stoned to death.
“The court faulted the lower court’s judgement, saying that since Daso became pregnant within two years of her divorce it was wrong to assume the pregnancy was illegal because there is the possibility that the pregnancy was from her former husband”, defence counsel Abdulkadir Suleiman said." Something wrong with the biology there but I'm not telling (and you'd best hold your tongue as well).
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