Mexico Wants Our Stoners

You're in the Mexican government. A lot of your citizens are leaving and going to the US. So what's your plan to replenish your population?

You could legalize drugs and get every single U.S. citizen who has ever worn a tie dye t-shirt to move to your country.

Heck, the entire population of California may end up in Mexico.

The Continuing Saga of Cory Maye

When people from Fox and Townhall.com are saying that a murder conviction smells very, very bad perhaps we should all take a look.

Also previously discussed in the comments here.

Be Careful What You Ask For

In Virginia if a prosecutor chooses not to go forward on a case he usually makes a motion for nolle prosequi - usually referred to as a motion to "nul pross." In theory a judge could deny this motion but in reality the prosecutor can get a nolle prosequi because it's the second Tuesday of April and his tarot reading told him he wouldn't succeed in efforts on this date. Some judges will ask if the defense objects but they'll grant the motion every time (not really the trial judge's fault - case law tells her to do this). Basically, the a nolle prosequi is what other States call a dismissal without prejudice.

Sometimes a prosecutor will move a dismissal. I have never heard a judge in Virginia qualify a dismissal with terms such as with or without prejudice. I've heard fellow defense attorneys opine and some judges hint that every dismissal in Virginia a dismissal with prejudice. I've even heard what I think are implicit admissions from prosecutors that this is the state of the law; i.e. "As part of this plea agreement we're going to move dismissal instead of nul prossing, Your Honor." However, it's always been an area where I've been uncomfortable.

The prosecutor in Roe v. Commonwealth moved to dismiss three charges. Then he went and re-indicted Roe. The defense attorney argued that the dismissal was with prejudice. The government argued that it was the equivalent to a nolle prosequi or a dismissal without prejudice. Both the trial court and the court of appeals resolved the ambiguity in favor of the prosecutor and held that it was a dismissal without prejudice. The Virginia Supreme Court, without dissent, overturns this and finds that the dismissal was a dismissal with prejudice.

It may be a little early to be entirely certain but it seems that the Virginia Supreme Court is trying to convince the Court of Appeals that ambiguities in the record must be decided in favor of the defendant (see also Overby v. Commonwealth). If the prosecutor had moved for a dismissal without prejudice I think it would not have come out in the defendant's favor. However, merely moving a dismissal is ambiguous without something further in the record and therefore must be interpreted as a dismissal with prejudice.

As a matter of actual practice, I think this settles the question of whether a dismissal in Virginia is with prejudice or not: it is a dismissal with prejudice. While I think a prosecutor could, under this decision, still move for a motion to dismiss without prejudice he's not going to do that. When he wants to be able to bring the case back he will move for nolle prosequi.

Now for the interesting thought. When a preliminary hearing is held the general district court judge can find a lack of probable cause and dismiss a case rather than certify it to the grand jury. Many times the prosecutor just goes straight to the grand jury anyway and directly indicts for a trial in the circuit court. However, there's now a colorable argument that the general district court judge's dismissal carries prejudice and jeopardy attaches. Very interesting . . .

Found at: Va App. News - Every Virginia Lawyer should be reading this blog so you can keep up with latest appellate rulings.

If I Refuse to Pay That Means They Can't Prosecute Me . . . Right?

I was just looking up something and I stumbled across this gem - In Virginia, if you are convicted you have to pay for the prosecutor's appearance:

SCHEDULE OF FINES, PENALTIES, FEES & COSTS - CRIMINAL PAGE: B-19
------------------------------------------------------------

TYPE: COMMONWEALTH'S ATTORNEY FEE
DESCRIPTION: Fee assessed for appearance of the Commonwealth's attorney
REVENUE CODE(S): 119
203 (city or county)
AMOUNT ASSESSED: Included in the fixed fees as provided in Va. Code §§ 17.1-275.1, 275.2, 275.3, 275.4, 275.7, 275.8, 275.9
WHEN/HOW Taxed against and collected from defendant upon conviction.
WHEN COLLECTED: payment is received, the fees are distributed as follows: 1/2 to the Commonwealth (119) and 1/2 to the locality (203).
REFERENCE(S): §§ 15.2-1627.2, 1627.3, §§ 17.1-275.1, 275.2, 275.3, 275.4, 275.7, 275.8, 275.9, Attorney General Opinion to Foreman dated 8/30/90 (1990) page 68

Around the Web

1) Criminal Defense in Massachusetts: "It isn't news that prosecutors and big-firm lawyers are the people who become judges, but today I wonder why so few criminal defense lawyers ascend to the bench."

2) Norm Pattis asks whom Lynne Stewart was representing and gets some interesting comments.

3) Eugene Volokh finds a rape case which would make a perfect law school hypo.

4) Don't blog about a case which hasn't yet been tried - the other side and the judge will find out.

5) A judge calls an officer's defense - in a civil trial - "too ridiculous to merit comment."

6) Alaskablawg makes an interesting proposal: Let defense attorneys designate, before the decision is issued, whether an appealed case should be published or not because so many appeals which are required by defendants rest upon horrible facts and will cause bad case law (under the old maxim hard cases make bad law).

BTW: check out riderz67's comment. It's kinda touchingly naive and makes me wonder what happened to that boyish naivete I used to have when I believed the system actually worked the way the books say it does. Oh, yeah - I started practicing criminal law.

7) Tom, as ever, is encouraging deep and meaningful conversation about the legal show-trial of the day: the Duke case. ;-)

8) Judging Crimes comments upon the lack of experience in criminal law found in our federal supreme court.

9) The celebrated case wherein the pot seller was convicted by the feds despite having State authorization has been reversed because a juror who was going to nullify was told by a lawyer that he could get in trouble if he chose to ignore the judge's instructions.

10) An "unnecessarily lengthy" brief wins the day.

11) Wow. DNA evidence clearly points away from the person you're trying to convict. How to deal with that? It could be the investigating officer's DNA.

12) 1,023 foreign criminals are released in the U.K. and Lenny gets called a racist in the comments.

13) Pro se pain.

14) Sentencing Hispanics to learn English.

15) And, of course, the most important posting of the day - which everyone must read - The All Important Motion to Wear a Cowboy Hat in Court.

ORDER of the Appellate Court

Okay, I admit it, my precognitive abilities are terrible. I finally got the Order the Virginia Court of Appeals entered into my Client's record in which the appeal was "granted in part and denied in part." The part granted? The Batson question: did the trial lawyer establish a prima facie case that there was an impermissible use of race in jury selection?

The question denied was the Miranda question. Miranda, for those of you who have never, ever seen a US TV police drama, is the requirement that Constitutional rights be announced to a suspect whom the police are not allowing to leave before the police question him. Basically, the police must say this:

1. You have the right to remain silent and refuse to answer questions.
2. Anything you do say may be used against you in a court of law.
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
4. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
5. If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney.
6. Do you understand these rights as I've explained them to you?

Obviously, merely reading these rights to someone is a useless exercise unless the police also acquiesce when the suspect invokes his rights. In theory, police will stop questioning when rights are invoked. In reality this is gamed shamelessly. Police will pretend not to understand clear invocations of constitutional rights and courts will pretend that a reasonable police officer could have misunderstood such invocations. The claim in my client's case is that the defendant did invoke his rights but the police ignored him and continued the questioning for two hours until Client made some incriminating statements. The Court of Appeals denies this, per curiam¹, using this reasoning²:

I. Appellant contends the trial court erred in admitting his confession after telling police, "I ain't got nothing to say", because he unequivocally invoked his right to silence.

On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

So viewed, the evidence proved the following. Appellant was arrested and brought to Pitcairn Police Department, where he was read Miranda warnings and then interrogated. About thirty-seven minutes into the interrogation, appellant told detectives, "I ain't got nothing to say." He later added, "Ain't got nothing I can say." At another point, he says, "Take me to a magistrate." The officers told appellant, "You don't have to say a word, but if you don't say anything nobody knows your side of the story." Two hours into the interrogation, appellant made incriminating statements.

When a suspect voluntarily makes a knowing and intelligent waiver of his constitutional rights, that waiver remains valid through subsequent interviews until the suspect manifests a desire to revoke it. Shell v. Commonwealth, 11 Va. App. 247, 255, 397 S.E.2d 673, 677 (1990). Following such a waiver, it is lawful for police officers to continue to question the suspect until he clearly and unambiguously manifests his desire to invoke his right to remain silent or his right to counsel. See Midkiff v. Commonwealth, 250 Va. 262, 266-68, 462 S.E.2d 112, 115-16 (1995). The issue whether a defendant invoked the right to silence during a custodial interrogation is a mixed question of law and fact reviewed de novo on appeal. Commonwealth v. Redmond, 264 Va. 321, 326-27, 568 S.E.2d 695, 697 (2002).

Detective Jones testified he believed appellant meant he would not answer the particular question that Detective Smith had asked. Appellant admitted he had been arrested previously, and had been advised of his Miranda rights. He also admitted he knew he could invoke his right to silence. The trial court had sufficient basis to conclude that appellant had not unequivocally invoked his right to silence, and thus did not err in admitting the confession.

There is an oft quoted, but seldom applied, statement from Davis v. United States, 512 U.S. 452, 458-59 (1994), which explains that in order to invoke his constitutional rights a suspect need not "speak with the discrimination of an Oxford don." In my petition for appeal I argued this:

In order to determine whether or not the officers could have mistaken Mr. Greene's invocation of his right against self incrimination as preserved under the 5th and 14th Amendments and Miranda it is instructive to look at the statement: I ain't got nothing to say. While not perfect English an examination of the words used leaves little doubt as to their meaning.

I - The one who is speaking or writing - used as a nominative pronoun of the first person singular by one speaking or writing to refer to himself as the doer of the action.

ain't - (substandard word) have not

got - to come into or be in possession of - used in the past participle with the auxiliary have for emphasis

nothing - not any thing

to say - (infinitive form) to express in words

Webster’ Third New International Dictionary, RR Donnelly & Sons (1971).

While the grammar is poor it is clear that the words used have no applicable secondary meaning. Mr. Greene is clearly telling the detectives that he is not going to speak. The facts that he makes a further statement about his inability to say anything, that he wants to be taken from the interrogation to the magistrate, that he remains silent for long periods of time on the tape, and the fact the detectives are commenting on his decision to remain silent are all things which strongly bolster the conclusion that he asserted his right to remain silent. Mr. Greene's strongest assertion of his right to remain silent is clearly the first and that statement alone is enough that an objective analysis can but find that the continued interrogation violated Miranda. Beyond that, the totality of the circumstances, including the admission by Detective Smith that the interrogation would only end with a confession or assertion of the right to an attorney, can lead to no other conclusion than the fact that Miranda was violated.

Hmmm . . . Now I've got to figure out how exactly I'm supposed to appeal half a denial of petition. Should prove interesting.



¹ I'm not sure exactly when, but a while back the Court of Appeals started issuing all of these opinions "per curiam." Previously the opinions were issued under the name of a particular judge. I'm not sure why the change was made.

² Names and locales have been changed. I'm sure that if someone out there was ambitious enough to go and look at the public files (this was not sealed) you could probably figure out who my client is but you're at least going to have to go look.

Another Appeal Accepted

After several years of practice without a single petition for an appeal being accepted by the Virginia Court of Appeals, I had my third petition in a row accepted yesterday. Not sure what to make of that . . .

Anyway, I'm pretty sure the petition was accepted. A company which has helped me put together petitions and briefs in the past has notified my office that the petition was accepted last Friday. However, I've gotten no confirmation of this from the Court of Appeals. I'm reasonably certain it will appear in the mail today or Thursday. Still, it would've been nice if I'd been notified first.

I'm especially interested in finding out which of the two questions I petitioned on has been accepted (or if both have been). The first is a Miranda question and the second is a Batson. I suspect the question accepted is probably the Miranda one because recent case law may have moved the State's common law more in favor of individual rights. We'll see.

Now, if I could just convince the Virginia Supreme Court to take my collateral estoppel argument . . .

DrugLaw

1) Trying to smuggle cocaine into jail by hiding it in Bibles. Because we've all wanted to be able to stand in front of St. Peter and say, "Yes, I did some really bad and stupid things in my life but at least I didn't do that." (Do you think snitching will earn points in Heaven the way it does in the justice system?)

2) Grandparents turn parent in for getting two year old high on cocaine.

3) A narcolepsy drug may help people break their cocaine addictions:

In addition to blunting cocaine's notorious cravings, modafinil might also counter the damage that cocaine wreaks on users' brain circuits - damage that in turn fuels the cycle of addiction.

4) The methadone's just supposed to stop heroin addiction. Nobody said it was meant to stop cocaine and marijuana use. (BTW - yes, at least the way my clients refer to it, it's "the methadone" not simply "methadone": i.e. I'm on the methadone.)

5) In Montana a man is trying to take refuge in the State's medical marijuana exception. The problem is that the 4 pounds he was caught with is a little more than the ounce allowed by law. Oh, and apparently he's not a Montanan. You'll never guess what State he's from . . .

New Additions to the Blogroll

I added a number of new additions to the blogroll yesterday and thought I'd mention a few:

Mr. District Attorney is back - always one of my favorites, I thought he'd stopped a while back and took his blog down. I was wrong. Here's a sample:

We had an out of town attorney try to get the chief judge to issue a writ of habeas corpus for his client, who was pending arraignment, on an oral motion. And the dummy was going to grant it! Happily for the chief’s reputation in the building, the clerk of the court is also an attorney and was able to advise him that the writ could only issue on a properly filed complaint. And Mr. Out-of-Towner had not filed such a complaint. Oh, and in the same breath, while he was issuing an illegal writ, he was ordering our office to appear forthwith and arraign the defendant. Aside from the fact that we were still waiting on the police report/request to charge, there’s a tiny little separation of powers thing going on there. Ya think? And the final insult? Mr. Out-of-Towner may have outright lied to the judge about the circumstances of his client’s detention. We don’t know. Why? Because the judge ordered the court reporter to go to lunch (don’t want to incur any comp time) and shut down the Dictaphones. Another attorney was in the courtroom while this was going on and left to call my boss and give him the heads up. So, two of us spent an enjoyable hour drafting a complaint in mandamus against the arraignment court, just in case. We didn’t need it, thank God, because who needs to be in the middle of that kind of firefight between the courts.

Gruntled Center isn't a blawg. It's a blog by a professor who teaches at my undergrad, Centre College. I had one class with this gentleman - it was well taught (something about defining modernism and post-modernism - I can't remember the title) and he didn't try to shove a particular world-view at us. Anyway, he's undoubtedly brighter than me and maintains a level of civility on his blog (which always impresses me). An example:

Marriage is an institution in which men and women learn to be husbands and wives by doing it. The structural logic of marriage draws a couple closer, and works best if they act in a unified way. It is especially important for a married couple to present a united front to their children.

Divorce is also an institution. Ex-husband and ex-wife are roles, too, though they are less defined by law and custom than are their affirmative counterparts, husband and wife. The structural logic of divorce pushes a couple apart. The natural drift of people who no longer have to accommodate one another would produce a widening gap. More than that, though, the divorce will be easier for each of the exes to bear if the couple is demonstrably different from one another, too different to live together. The more different they get, the more the divorce seems justified, even inevitable.

Marquardt's point is that the more different the parents become, the harder it is for their kids to construct one coherent moral worldview.

Japundit - It ranges from funny to serious to silly to strange but it's almost always interesting:

A hot springs theme park in Hakone has introduced doctor fish to one of its baths in a move that is proving to be quite popular with its visitors.

The doctor fish is a kind of carp found in Turkey and other countries of west Asia, which eats old dry human skin. Visitors dangle their feet in the water and the fish get to work removing old skin. Some say that the fish not only cleanse the feet, they also have a healing effect.

And now for a couple which aren't exactly new . . .

OrinKerr.com doesn't exactly need a recommendation from me but he's going to get it anyway. It's a mixture of law school matters and criminal law which is always interesting. A sample:

I’m reminded of a session at the AALS New Law Teacher workshop in June 2001, the summer before I started teaching. A professor who looked to be in his late 40s lectured to us about today’s students, and told us that we had to be ready for something very new: “Students today are part of the MTV Generation.” They grew up watching MTV, he told us, and MTV caused them to have a short attention span and made them want to be entertained in class.

Having spent a large chunk of the 1980s glued to MTV — I think I probably memorized every music video aired from 1982 to 1986 — I wasn’t entirely sure how to respond. I remember thinking that the AALS workshop seemed pretty useless; could I blame my inability to appreciate its merits on a misspent youth warped by Dexy’s Midnight Runners, Bryan Adams, and the Thompson Twins? Had I watched the complete Thriller video too many times to appreciate the latest in “learning theory”? Hmm, perhaps.

Judging Crimes just about has me convinced to move to New Mexico and take up a defense practice. Apparently, from the ire Joel expresses, courts out there must be excluding the evidence in every third case on the grounds of constitutional violations. Maybe he and I can switch places so he can come to Virginia where I'm pretty sure I'd need some very compromising photos to get certain judges to suppress anything. Anyway, Joel's entries are always well thought out and worth reading:

The strength of the common law system - the source of its political legitimacy as a non-democratic generator of law governing a democratic society - is that it chains together the intellects of judges across time. If 20 judges hear cases involving the same issue at roughly the same time, assuming that most (not necessarily all) of the judges are of average intelligence and honesty, and 15 of them arrive at the same conclusion, there's something like a 75% chance that solution is a reasonable one.

If, however, 20 judges hear cases involving the same issue over the course of many years, and 14 judges follow the lead of their predecessor, there's roughly a 73.7% chance the approach they adopt is a practical one, because the impracticality of an unworkable rule will always become apparent over time. In the real world, practicality is an even more important consideration than reasonableness, as Hedley observed four centuries ago.

What made the common law so powerful was precisely its lack of self-consciousness. The judges thought in terms of concrete problems, and sought workable solutions. As other, future judges applied the lesson of the old case to a new reality, they tinkered with the rule laid down in the earlier case. They didn't do so for the purpose of perfecting the rule, of establishing it once and for all in its crystalline form, but to deal with the new variation on the old facts.

Check 'em out.

Interrogations

If you've been around for a while you've seen my comments on police interrogation. Well, Alan Hirsch has put together an entire site about the possible wrongs in police interrogations.

Yeah, I did a Harry Potter post on Saturday. I think it was a side effect of having read the first four books last week.

Sunday I changed the format for the first time in a while. Not sure I'm thrilled with it. Comments?

Of Course, I Deny the Catnip Rumors

Harry Potter Quiz: Which Hogwarts Professor Are You?

Minerva McGonagall, Transfigurations.
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Guantanamo Hacker

So, you're a British hacker and you succeeded in a truly massive attack on the US government's computers. You don't want to take that free of charge, fully paid government trip to the US (accomodations included) for some reason. What's your basis for fighting the extradition?

The Evil Americans are going to throw you in Guantanamo!

DeathLaw

1) The Church is pushing the Philippines to abolish the death penalty.

2) Amnesty International is urging the EU to push Japan to abolish the death penalty.

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

3) Meanwhile, back in the good old US of A - In South Carolina it looks as though there's an excellent chance that the application of the death penalty will be broadened.

4) And the Moussaoui circus goes on with the government admitting there is no credible evidence that Moussaoui and the shoe bomber had anything to do with one another.

5) In Illinois, the fact that your murder conviction was on appeal when the governor declared all death penalties commuted means you are commuted as well - even if the appellate court granted a new trial.

6) In Vermont the Supreme Court will decide whether the year-and-a-day rule ever existed in the State and if it still does.

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

7) Australia: Perhaps you shouldn't agree to a DNA test if it proves you're the person who committed the murder.

You Just Don't Get This Kind of Reporting in the States

"A NOTORIOUS criminal was shot dead by police during an encounter near a hotel in Cantonment area on Thursday. An accomplice of the slain criminal managed to flee the scene. Both miscreants were fleeing after looting two employees of a private firm."

From the Hindustan Times

Further Impressions Of the Virginia Court of Appeals

Okay, now that ya'll have had a day to see what I could remember of my actual argument, I thought I'd talk about some of the peripherals.

1) The Time Set:

A few weeks prior to the argument date I got a letter which asked me to sign it and send it back to the Court stating that I was to be at court 10:00 a.m. I signed it and my secretary mailed it back. A week or so later I was in the office when a clerk from the Court called and said the letter had arrived unsigned. I faxed a signed copy again and it still said 10:00. Over the weekend, being at home and little paranoid, I got on the Court of Appeals website and downloaded a pdf of the docket. It said that all arguments are docketed at 9:00 and that the order of argument could be switched without notice. I came to court at 9:00. Consequently, I got to watch seven 1/2 hour arguments before mine.

2) The Court Building:

The Court of Appeals in Richmond isn't exactly intimidating. It is located on the street behind the Supreme Court. Unlike the Supreme Court, if you didn't know it was there you'd never notice it. It's just another gray building. There's a glass door leading to a hall with the ubiquitous capitol police officer and metal detector. A short way past the officer's desk the hall dead ends at the rest rooms. Just before that, there's another short hall off to the left which dead ends at the courtroom.

3) The Courtroom:

I must say, I was impressed with the courtroom. It was obviously built to be practical and effective rather than to impress the public. The courtroom was maybe a third the size of most courtrooms with three or four gallery rows. In front of the bar there were two plain tables - the one on the left labeled appellee and the one on the right appellant. Between the tables was a nice big podium. The bench was facing all this and slightly elevated, but not high enough to lord over people or make the lawyers crane their necks in order to look up at the judges. Everything in the room was light instead of the impressive dark stained wood you see elsewhere and the only ornamentation in the room was the - I suppose mandatory - Virginia seal on the wall behind the judges and painted portraits of the retired appellate court judges on the back wall (where I didn't even notice them until the court took a break and I left to use the facilities). The only complaint I have is that the podium was a little too high for a 5'5" person (me) and if that's the worst complaint I can think of it's a pretty good courtroom.

4) Other Arguments:

Any question I had as to whether my argument should have been in front of the court lessened when I heard some of the other arguments. One appellant was arguing that her client wasn't guilty of attempting escape because he had only gotten out of the building and thru one fence and not through the three others between him and escape (to be fair, it was an assigned case which had been tried below pro se). Another was arguing that his client's case should be overturned because it was unproven that the crime occurred in Virginia. The only thing proven was that it happened on Chamberlayne Avenue (a major thoroughfare in Richmond, Va - hours from any other State).

5) The Postmortem:

So, I'm sitting around talking with another attorney about my argument who has read yesterday's blog entry and he opines that he doesn't see how, since I objected at every opportunity, they could rule against my client - with one possible exception:

Lawyer Guy: "I guess they could make a case that you had notice and should have noted an objection from the moment you were sent the order setting the date."

Me: "Nobody ever sent me that order or notified me of the date. I have to get the dates myself and all I'm told is the date."

Lawyer Guy: "You told the Court of Appeals that, didn't you?"

Me: "OMG"

Then it hits me. They actually thought I had seen that order. I had everything in my file. The local prosecutor has an open file policy, so I had everything in his file. I had the court date. I had no reason to go combing thru the court's file for that order. They think I saw it before court. AAaaarrrrggg!! -expletive deleted- -expletive deleted- -expletive deleted-

Aren't postmortems so much fun? You'd think we'd all learn better in law school. But no, we keep doing it to ourselves. I think it's some sort of mental condition particular to lawyers: lawyerus obsessivus masichistus.

Arguing in the Appellate Court Virginian

Yesterday was my first argument in the Virginia Court of Appeals. While I was sitting in the office waiting for appointments to show this afternoon I sat down and typed out as much as I could remember. It's accurate to a point. Parts that followed my planned argument are easier to remember as well as some other, ummm, "interesting" parts. Admittedly, I remember my answers the best but I suspect that the memories of the first few answers are more accurate than those mid to late argument and some of my answers probably weren't as well made as I now recall. The judge's questions are all summarized (and probably miss some points). The summary of the Senior Assistant Attorney General's argument is terrible and does her an injustice. I remember her argument as being very well made; I just can't remember it except for the notes I took to reply to certain parts.

The case is about the application of Virginia's speedy trial statute which requires that a case be dismissed if a defendant is held in continuous custody for 5 months after his preliminary hearing without trial and that people who are not in continuous custody must have their cases tried in less than 9 months. Mr. Smith was tried after six months had passed from his prelim.

At trial, the prosecutor argued that the 5 months was not applicable to Mr. Smith because he was being held in a juvenile detention facility on a charge entirely unrelated to the case on trial and therefore was not being held for the case on trial; Mr. Smith was clearly tried within the 9 month period. This is the argument which won the day in the trial court. On the appeal, the attorney general raised an argument which had not been raised in the trial court. Relying on the order setting the trial date, which used canned language stating the date was set "with concurrence of defense counsel" the Attorney General asserted that I had waived my statutory obligation to object to the setting of a date outside the speedy trial period. I wasn't present when the date was set in order to object and had noted a "continuing objection" when I provided potential dates to the prosecutor (who set the trial date in tandem with the judge).

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

Good Morning, your Honor, I'd like to reserve 5 minutes.

May it please the Court, Counsel.

I'd like to address first the argument I think is the strongest one made by the Attorney General: that I acquiesced in allowing a court date to be set beyond the speedy trial period.

It's their strongest argument because it wasn't raised by the Commonwealth attorney in the circuit court.

* Judge Jones: Are you talking about the 14 December order setting the trial date?

Yes, your honor. It's a pro forma standardized order the clerk's office issues in every case.

* Judge Jones: How is this case different from Hudson v. Commonwealth?

This case is different because of the manner in which cases are set in Pitcairn County. The defense attorney is not present when cases are set in Pitcairn County. He's only there on the date set for trial. Defense attorneys forward their available dates to the Commonwealth Attorney before the date is set. On page 59 of the appendix you'll see that my dates were so forwarded; I noted every date within the speedy trial period as an available date and thereafter listed my later available dates. The Commonwealth Attorney took those dates to the judge and they set the date.

* Judge Jones: Were you precluded from going to set the date?

Sir, I've never tried to go and had a deputy bar me from the judge's chambers. However, in Pitcairn County the standard practice is for the Commonwealth and the judge to meet and set the court dates. I provided my available dates; I didn't try to break into the judge's chambers to take part in this proceeding.

* Judge Jones: You provided the chosen trial date as available?

Yes sir, but if you look at the top of that fax you'll note that I wrote "This is not a waiver of my continuing objection to the continuance in the Smith case."

* Judge Jones: Doesn't the Court speak thru its orders?

Your Honor, I think the record can be used . . . Sir, this is why I stated that if this had been raised in the court below I could have dealt with it there - just as the order which was actually raised at trial was dealt with via a nunc pro tunc order because it was also wrong. I had put both the Commonwealth and Judge on notice that I had a continuing objection and I'd given them every single date within the speedy trial period as an available date. I have to give the court more dates than that and come to court when I am required. That doesn't mean I have acquiesced in the setting of a date outside the speedy trial period. Please note, the dates provided were also for all the other cases I had that term.

* Judge Jones: Was this a final order?

With the exception of a nunc pro tunc change.

* Judge Jones: Was it the final order of the case?

No Sir.

* Judge Jones: Then why didn't you file a motion to change the trial date order prior to the final order?

Honestly, it wasn't argued in the court below and therefore I never addressed it. The clerks in the Pitcairn court file pro forma standardized orders. I hadn't investigated that order since it's not required that one be filed - only that the record reflect the court's action and I had looked toward the continuing objection I had filed. I first took notice of this when the Attorney General relied upon it in the appeal.

* Judge Greene: After the 14 December date was a hearing held on the speedy trial issue?

Yes Sir. In that hearing the Commonwealth relied upon an argument that the 9 month period applied instead of the 5 month period because Mr. Smith was being held the entire time on a different charge in a juvenile detention facility. He also argued that I had agreed to the continuance on the original trial date but, because that was argued in the trial court I was able to establish that the order he was relying upon was incorrect and nunc pro tunc it.

I objected at every opportunity. I objected at the original trial date. I noted the continuing objection when I provided my dates. The next time I was in court was the trial date and I made my speedy trial argument at that time. With the trial court's leave I again made the speedy trial argument on the sentencing date. These were all the contacts I had with the court.

The trial court denied my motion because the judge felt the 9 month period should apply rather than the 5 month because Mr. Smith was in the juvenile detention facility serving time on a different charge.

If we move to this point, it's where the Commonwealth's case is weakest. If your read Price v. Commonwealth, which was adopted in toto by the Supreme Court of Virginia in Commonwealth v. Price, the case is a little complex but it's clear that one of the arguments relied upon by the Commonwealth was that Price was held on a juvenile probation violation and therefore the 5 month period was not appropriate. As I read the facts in that case, the defendant was in custody of the jail for 4 months when the speedy trial motion was made and had previously been in custody of a juvenile detention facility for at least a month. I think this was the basis of the Commonwealth's argument. Nevertheless, whatever the basis of the Commonwealth's argument was this court held that "It is immaterial that such custody coincided with the detention of the defendant incidental to the unrelated commitment."

For this point Price referred back to Funk and I also discussed the case law in Ford. These two cases are detainer cases and have been over-ruled by the General Assembly but at this time they were good law. Therefore, while there might be some question as to whether Price is currently good case law it was clearly the binding precedent at the time. I'd say it is still good law because Price didn't deal with detainers - it dealt with someone being held as the trial progressed. In any case Price was good case law at the time.

The test is whether the trial court can bring the defendant to court to answer to his charges. They could. They did. They just didn't do it until the speedy trial period had passed.

I'd ask that the case be reversed and dismissed. If there are no further questions?

* Chief Judge: No.

Thank you.

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

Attorney General

* Judge Jones: Do we consider how Pitcairn does it in determining whether the speedy trial statute was tolled?

AG: No, per McCray v. Commonwealth.

* Chief Judge: Is the defense attorney at fault because he gave dates which were beyond the speedy trial date?

AG: Yes, Your Honor, he should not have given the court any days beyond the date on which the speedy trial time period ran.

Going further, what distinguishes this case from Price is the fact that in Price the judge had ordered Price remanded to jail. He was held at the juvenile detention facility but at the time he was also ordered remanded to jail. There was no remand to jail in the case at bar.

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

Me: Going back to the first argument, I again assert that the reason it's the stronger Commonwealth argument is the fact that it was not raised and dealt with in the trial court. Addressing McCray, McCray is distinguishable from this case in that in McCray the defense attorney called the prosecutor's office and the prosecutor and defense attorney set the specific date between them. He affirmatively set the date.

* Judge Greene: How many days had passed on 14 December?

Sir, it was 144 days.

* Judge Jones: Don't you have a duty to inform the court of the date when speedy trial will run?

No, it's my duty to put the court on notice to my objection to any date beyond the speedy trial date and I did this on my fax to the prosecutor.

* Judge Greene: Did the judge have notice of your continuing objection?

I cannot be certain because the fax was sent to the prosecutor but I assume that he took it with him to set dates. In any case, the prosecutor bears a burden of making sure cases fall within the speedy trial period.

* Judge Jones: If an order is put in front of me and it states that it is with the concurrence of the defendant do I have a duty to investigate?

PROPER ANSWER (the one I should have given): The judge was at the setting of the case and knew I wasn't there to concur in it.

IDIOTIC ANSWER (yep, this is what I said): I wasn't there when the order was signed. In fact, as you can see it wasn't physically signed. As far as I know, it was stamped by the clerk and never seen by the judge. (OMG, how stupid can I be?)

* Judge Jones (incredulous): Are you alleging that this wasn't signed by the judge?!?

Yes, your Honor, it is technically signed by the judge. It's a stamp with s, a backslash, the judge's name typed, and the word JUDGE typed under it.

Your Honor, I'd ask to withdraw that answer. I have no proof of anything - it's speculation and inappropriate.

[NOTE: This may not have been the stupidest thing I've ever said in court, but it's close. A spur of the moment thought, it didn't forward my argument, it wasn't based on any facts, and could only serve to upset the judges. When I had some time today, I looked over a number of orders from this county and they are all stamped signatures. I can only assume that the Judge has a stamp on his desk and uses it instead of writing his name over&over&over&over. ENDNOTE]

* Judge Greene (grinning at me as I back-pedal furiously): You were answering a question so it's forgivable.

Your Honors, the signing of the order is not when the error occurred. It occurred at the actual setting of the date when the Judge and Commonwealth Attorney, who definitely has a duty to make sure a case is set within speedy trial limits and had received notice from me that I was continuing my objection in this case set the case outside the time period.

* Judge Jones: How do we know the Commonwealth Attorney wasn't relying on the same tolling which the Attorney General has claimed today?

He didn't take that position at trial. He didn't argue that. His only argument along those lines was that I had concurred on the continuance on the initial trial date. Because of that argument the other incorrect order in this case was corrected. He knew how the system works in Pitcairn County and, because of that knowledge I don't think he'd have made the argument the Attorney General makes.

As to the claim that I should only have given those dates prior to the running of the speedy trial period, I suspect that if I had done that we'd be here today on the appeal of my contempt conviction rather than my client's appeal. I was providing dates to the court for every case that term, not just Mr. Smith's case; I specifically made sure that I provided dates for every day within the speedy trial period.

* Judge Greene: You might not have been granted a writ on a petition in your contempt case . . . ;-)

I may not have, Sir. :-)

Addressing the 5 or 9 month issue, your Honors, per 19.2-80 there's a requirement that those charged be brought before a judge and either released on bond or remanded to jail.

* Chief Judge: Did you raise this in the trial court?

[NOTE: In her brief, the Attorney General had claimed that I had not argued this in the trial court. The defendant, unlike the government, is not allowed to argue something if it wasn't argued in the trial court (with some very, very limited exceptions). ENDNOTE]

Yes I did your honor. It's not raised as artfully as I would care for, but if you look on the bottom of page 67 of the transcript and go to page 68 you'll see that I reserved this point. We were arguing the 5 or 9 month issue and I pointed out that Mr. Smith was served a warrant and thereafter was either to be given a PR bond or remanded to custody.

I'll admit, your Honor, that I had to go and look up the number of the code. However, I did know this area of the law and argue it in the circuit court.

* Chief Judge: Thank you, Mr. Lammers. Your time has run.


At this point the judges came down, shook our hands, wished us well, and returned to the bench to call the next case.

Trial By Combat in Montana

For shame, Orin! Deriding a valid trial by combat motion. After all, Montana has adopted the English common law and I can't find a Montana statute getting rid of this part of the common law.

Cyber-Crime

1) Police are going to popular online communities to see if people are dumb enough to post evidence online. And, Y'know what? They are.

2) An interview with Chris Painter deputy chief of the Computer Crime and Intellectual Property Section of the U.S. Department of Justice:

When I started doing this, society wasn't as dependent on computers and computer networks as it is now. The kind of attacks we saw were more singular -- they used to be the result of lone gunmen, if you will, who were more interested in doing it to show they could. But more and more we are seeing a couple things. One is a merger between the criminal groups -- the groups who were using the Internet as a new tool to reach new victims -- and the more sophisticated hackers. What that means is that these kinds of hacking attacks are more and more done for a monetary motive. And we've also seen the rise of organized criminal groups. There have been some examples recently where organized criminal groups were hacking into systems and then extorting companies.

3) Some people are surprised by the amount of online crime:

''When I took this job a year and a half ago, I didn't think we would find any computer crime. But there are a lot of individuals out there,'' said Special Agent Brett Banner, administrator of the Mid-Michigan Area Computer Crimes Task Force, based in Bay City.

4) From Nigeria:

There is need to devise means to stop perpetrators of internet crime. There is need to secure the present global village, mega businesses and the posterity from the protracted evil of cyber crime without delay.

5) Maine's Legislature is trying to expand it's cyber-crime task force.

6) Some departments are trying to even the odds with better software.

7) In the UK they're trying to update their computer law.

8) And finally, how can we expect normal people to obey the law when Best Buy is stealing software?

Laus Deo

He is Risen

Everyone have a great Easter. I'll probably be gone until Wednesday because, on top of Easter, I have my very first oral argument in the Court of Appeals on Tuesday. That's enough to make me nervous all by its lonesome and, of course, I really don't want to become one of HOWT's terrible appellate attorneys posts.

God Bless and keep ya'll.

The Governor & Carrying Weapons in the Open

Virginia has a concealed weapons law - no shock there. The problem has been that some amazingly bad case law has sprung up around this statute.

In Virginia, if you have a firearm in your car you are required to keep it in the open. Unless you have a concealed carry permit you are forbidden from locking the pistol in the glove compartment or even from locking it in a carrying case under the seat. For example, if you go to a very dangerous part of Richmond where about 2 cars a week are car-jacked you might want to take your pistol with you. On the other hand, perhaps you are just going to the range to target shoot. In either case, you must keep the pistol on the car seat, in plain sight, from the moment you sit down in your car until you leave (and take it with you). Should you leave the car at any time you cannot lock the pistol in the glove compartment - you must leave it in plain sight. If you have to stop and get gas you must leave the pistol in plain sight when you go inside to pay.

Of course, this is a part of the law which violates common sense. In other words it falls under the maxim "Nihil quod est contra rationem est licitum." Of course, not being a morally valid statute doesn't keep it from being enforced.

Usually, the situation which brings this to court is when a driver of a car tries to do the right thing and lock his pistol away where neither he or anyone else can get to it quickly and he gets pulled over. The officer wants to see his registration and it's locked in the glove compartment with the pistol. Mostly these charges are filed by rookies who aren't comfortable using their discretion, but occasionally you see them filed by a veteran officer who is angry at Client for some reason or wants to get "that elephant gun" off the street. Quite often the charge is dropped when Client agrees to relinquish his pistol (and then goes to a gun show over the next weekend and replaces it).

Republican Delegate Athey proposed a common sense addition to the concealment statute which would fix all this; by the time it passed both the House of Delegates and the Senate its language was:

Except as provided in subsection J1, this section shall not apply to:
. . .
8. Any person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is locked in a container or compartment in such vehicle or vessel.

It solved the problem. However, our beloved Governor, Tim Kaine, vetoed the bill. Why?

This measure runs contrary to existing state law regarding concealed weapon permits, allowing persons who have not completed a criminal background check, and who are untrained with a handgun, to possess a firearm in a concealed manner within a locked compartment in their automobiles.

It also presents a danger to our law enforcement officers, who risk their lives for Virginians on a daily basis while patrolling our Commonwealth's roads and highways. The objections of law enforcement to this measure are compelling.

What an idiot. Of course, "it runs contrary to existing state law" - it's an attempt to fix an aberrationn in the law which punishes people for trying to be responsible. Arrrrggggg!!!!!

British Columbia Wants to Know How Many Kitchen Ranges You Are Using

The power company in British Columbia is being required to turn over unusually high usage numbers to municipalities. However, it's not to find people growing pot in their houses. Nope. Just ask Solicitor General John Les. It's about "consumption data reveal[ing] a homeowner using four kitchen ranges at the same time - not for any illicit purpose, but a safety hazard that was resolved with an electrical upgrade."

Quoth Chilliwack Mayor Clint Hames: "If laws are being broken and communities are being hurt ... we need to think about giving up some civil liberties to ensure safety."

And the Marijuana Busts Roll On

1 ton

2,000 pounds

3 pounds (and 500 mature mushroom plants)

29 pounds of marijuana, three pounds of hash oil and one kilo of kief

"An upscale house backing a golf course in the western part of this college town [Lawrence, Kansas] was used almost exclusively to grow marijuana."

If you grow marijuana at your house taking a picture of it and then going to get it developed at your local grocery store may not be the brightest move.

Marijuana: And Then There's California

1) Alameda County to issue medical pot ID

2) New medical marijuana dispensaries were temporarily banned in unincorporated parts of Contra Costa County to allow supervisors to develop new zoning regulations.

3) Future medical cannabis clubs looking to take root in Atascadero will have to comply with a new city ordinance approved Tuesday.

OMG! There's been a massive outbreak of serious, long-term, painful diseases and conditions in California. Either that or they're handing out marijuana to people who stub their toes.

Wait, there's one last story:

4) The city of Emeryville has paid $15,000 to a medical marijuana user who was busted for growing pot, settling a lawsuit that accused police of refusing to return his seized plants, some of which were stolen by thieves, authorities said today.

Hmmm . . . Y'know, I remember something about the feds still declaring all this stuff illegal and being supported by the courts. Heck, this open refusal to obey federal mandates is more than S.C. was doing before it declared secession. I wonder . . .

The Ever Increasing DUI Punishment

I really don't have a huge problem with a mandatory two years in jail for a third conviction within ten years (Pennsylvania) - although I think it would work better if you had it set up as a dual option: successful completion of DUI court or mandatory two years.

However, impounding someone's car just doesn't accomplish anything.

Remember once-upon-a-time when Richmond had the questionable sheriff? Well, it appears that things like that might happen in other States as well.

Police DUI Dismissal

A DUI charge against an officer was dismissed because the procedures were not properly followed.

Danger Will Robinson!!!

I found this in the sheriff's handout leaflet bin on the wall of the courthouse yesterday. Am I supposed to take it home and put it on my own door handle? Or maybe I'm supposed to put it on my rear-view mirror? But wait, wouldn't that be entrapment? I'm confused . . .

The Heisenberg Uncertainty Principal in Court

Many of us can harken back to the days of yore when we were taking physics or chemistry courses and learned the Heisenberg Uncertainty Principal. While it's more complex than this, a basic description of the principal is that the act of observing a subatomic particle changes that particle. Well, this principal doesn't only apply to subatomic particles - it also applies to courtrooms.

The Courtroom Uncertainty Principal - the behavior of prosecutors and judges will change if reporters are present.

Yep, we've probably all been there before. It's a typical grand larceny. Client has been in jail 6 months waiting for the end of his trial and his recommended sentence is 6 months. Normally, you'd go up and point out the good things in your client's life (new child, fiance, job waiting at his Uncle's candy factory), the prosecutor would submit the case without argument, and the judge would sentence your client to the recommended sentence. You make your pitch and, without warning, the prosecutor pops up and goes into an impassioned speech about the horrors of your client's act of stealing three sweaters and how such an act is the ultimate example of evil in society and demands no less than digging a hole under the jail and burying Client in it for the next 5 years. The judge, cued in, gives a long and somber speech about the evils of your client's act of villainy and, usually, gives the same sentence he would have anyway. If you're a newly minted attorney you walk out of the courtroom wondering "What the heck just happened?" If you've been doing this for a while you don't even have to turn around - you know there's a reporter in the room. After you've been at it for a while you can even distinguish what kind of reporter without looking. If the prosecutor just wants to put your client in jail for the next ten years, it's the local paper. If the prosecutor wants to bury your client under the jail for those ten years, it's someone from the regional paper. If the prosecutor wants to impose the punishments of Tantalus or Sisyphus, it's a TV reporter. If the prosecutor starts by saying "Lasciate ogne speranza, voi ch'intrate" and wants to condemn your client's soul to eternal damnation in the 6th Circle of Hell, it's someone from the NYTimes or a national TV reporter (understand that this is merely a theoretical understanding on my part - I've never actually seen either of these in court).

To be fair, the prosecutor isn't the only person in court affected by observation. I'm sure there are defense attorneys who are affected as well - lawyers who wax rhapsodically about their client's epiphany and near certain canonization. And I know judges are affected. How do I know? Well, I saw it yesterday.

I walk into yesterday's pretrial hearing for those who are being held in custody (they are informed of their charges, asked what they intend to do for a lawyer, and have bond set). Mostly, there's the typical crowd: about 8 lawyers sitting around to see if a case will be assigned them by the judge, the clerk, a couple deputies, the families of a couple of the people who are getting pretried, the judge, and a really, really good looking redhead sitting on the front row. Upon a second or third look I realize she is dressed far too nicely. I look around. There's a guy over there in a light blue shirt, tie, and with perfect hair. And there's another one. Aha! We have reporters.

The hearings commence. The judge is being very clear and polite with each and every accused, but he's not changing many of the bonds the magistrate has set - unusual because this is a judge who is pretty assertive. Still, it could just be that he agrees with the bonds set by the magistrate. So we go thru the entire docket. The judge assigns attorneys to those who need court appointed attorneys; I get assigned to a trespass case in which the judge refuses to set any bond amount.

About 80% of the way thru the docket the judge is informed that Juan Guzman hasn't been brought to court. In fact, the local jail shipped him out to the regional jail this morning. Normally this would just mean that the pretrial would be put off for a day. However, on this day the judge orders the deputy to call the regional jail and see if a video pretrial can be set up; the deputy starts making the calls. In case you haven't guessed, Guzman is the reason the reporters are in court.

The English language portion of the docket ends. I get up to leave (I don't speak Spanish) and, since there's nothing currently going on in court, tell the judge "Have a good day, your Honor." It's the polite thing to do and most attorneys do it on their way out if it's the end of the docket and the judge isn't busy. This judge is a decent sort and normally you get a nod and maybe a "Good day" back. Yesterday: "You have a good day as well, Mr. Lammers. It's always good to see you in our courtrooms." Ya' coulda floored me. Free advertisement which made it sound like it was a privilege to have me in the courtroom. Now if I could just get the reporters to report that statement or the judge to say it in a courtroom full of people who might hire me . . .

I left the courtroom and never did find out if they were able to get the video pretrial set up. The regional jail's personnel don't answer to anyone in the county (they're not part of any sheriff's department) so they can be, ummmmm, intransigent when things aren't done exactly according to schedule. Still, with pressure from both a judge and reporters it may have come off.

Asking the Important Questions

Is Tom McKenna "actually David Feige in disguise?" Enquiring minds want to know!