28 May 2010
Methinks the Judge is a Hunter
Ripped from the Headlines (or at least the Volokh Conspiracy): A judge in Texas didn't exactly see the immediate emergency in a hunting cabin without toilet facilities.
How do you prove consent?
I was checking the searches which brought people to CrimLaw over the last day and came across "what are the best ways to prove consent?" The best way to prove consent is by video taping the transaction as your lawyers, in your presence, put together a contract which is signed by both you and the other party. Here's the best video I know of demonstrating that principal in action: "Sexual Consent"
27 May 2010
Quote of the Week
DefenseAttorney looks around my office at the Saint Ives plaque (patron saint of lawyers), certificate for working security on a JPII visit and statue of Michael defeating Satan. Then he turns to me and says, "You're Catholic. That explains why you're so tough about the law."
At the time my reply was, "Well, it's worked for over 2,000 years."
After DefenseAttorney left, I started thinking. If I'm tough because I'm Catholic, just imagine what what I'd be like if I was a Jewish prosecutor. With 2,000 years of a faith behind my religion I'm tough; with 4,000+ years behind me I might be a force of nature.
At the time my reply was, "Well, it's worked for over 2,000 years."
After DefenseAttorney left, I started thinking. If I'm tough because I'm Catholic, just imagine what what I'd be like if I was a Jewish prosecutor. With 2,000 years of a faith behind my religion I'm tough; with 4,000+ years behind me I might be a force of nature.
24 May 2010
Virginia Fixes a Flaw in the Appellate Process
So, I'm reading through the Virginia Appellate blawgs and I find out that the Virginia Supreme Court has changed the Rules as they apply to appeals. Now, I haven't had a thriving appellate practice as a deputy commonwealth attorney, but I still have some memories of writing these things back in the day. So, I wanted to check to see if they fixed what I remember being broke.
You see, there's a technicality in Virginia law which serves no purpose but to trip up the unwary and allow petitions for appeal to be dismissed without any consideration of substantive matters. In the Court of Appeals the petitioner is required to list "Questions Presented" (5A:12). However, in the Virginia Supreme Court the petitioner is required to list "Assignments of Error" (5:17). In fact, the Supreme Court's rule goes even further and states that "[o]nly errors assigned in the petition for appeal will be noticed by this Court."
It was a distinction without a difference and basically required that the questions presented to the court of appeals had to be changed into a statement. For instance:
Was the trial judge wrong when he ruled the sky was gray?
would become
The trial judge was wrong when he ruled the sky was gray.
It may have had the distinction of being the dumbest thing in the entirety of the appellate process. However, anyone who forgot to make this superficial change got his appeal rejected out of hand. It was a particularly nasty trick on those who were new to appellate work. After all, one would not expect appellate rules to have superficially different formats which could lead to the dismissal of an appeal out of hand. Newer attorneys who had an appeal rejected by the court of appeals would change the heading and put any arguments in they had to address points made by the court of appeals and send it off only to have it rejected because they hadn't made this unimportant change.
BUT NO LONGER
The Supreme court has rewritten rules 5:17 and 5A:12. Both rules are more extensive than they were before, but the biggest change is that now the court of appeals now has the same requirement as the supreme court. Both use "Assignments of Error."
Now, these rules don't come into force until 01 July, but thank goodness they fixed that flaw.
You see, there's a technicality in Virginia law which serves no purpose but to trip up the unwary and allow petitions for appeal to be dismissed without any consideration of substantive matters. In the Court of Appeals the petitioner is required to list "Questions Presented" (5A:12). However, in the Virginia Supreme Court the petitioner is required to list "Assignments of Error" (5:17). In fact, the Supreme Court's rule goes even further and states that "[o]nly errors assigned in the petition for appeal will be noticed by this Court."
It was a distinction without a difference and basically required that the questions presented to the court of appeals had to be changed into a statement. For instance:
Was the trial judge wrong when he ruled the sky was gray?
would become
The trial judge was wrong when he ruled the sky was gray.
It may have had the distinction of being the dumbest thing in the entirety of the appellate process. However, anyone who forgot to make this superficial change got his appeal rejected out of hand. It was a particularly nasty trick on those who were new to appellate work. After all, one would not expect appellate rules to have superficially different formats which could lead to the dismissal of an appeal out of hand. Newer attorneys who had an appeal rejected by the court of appeals would change the heading and put any arguments in they had to address points made by the court of appeals and send it off only to have it rejected because they hadn't made this unimportant change.
BUT NO LONGER
The Supreme court has rewritten rules 5:17 and 5A:12. Both rules are more extensive than they were before, but the biggest change is that now the court of appeals now has the same requirement as the supreme court. Both use "Assignments of Error."
Now, these rules don't come into force until 01 July, but thank goodness they fixed that flaw.
18 May 2010
Are there automated DMV's somewhere in Virginia?
Well, not the ones I've been to, but apparently some judges on the court of appeals think they are.
In Swanson v. Commonwealth, MAY10, VaApp No. 0163-09-3, a decision addressing the "opened the door" rule of evidence and the "present mental state" exception to hearsay, the court is addressing Defense Counsel's attempt to get some statements in after Prosecutor had elicited a statement from Witness that Defendant had said he went and got a title at DMV.
In Swanson v. Commonwealth, MAY10, VaApp No. 0163-09-3, a decision addressing the "opened the door" rule of evidence and the "present mental state" exception to hearsay, the court is addressing Defense Counsel's attempt to get some statements in after Prosecutor had elicited a statement from Witness that Defendant had said he went and got a title at DMV.
"Contrary to [Defense Attorney's] assertion, however, [Witness] did not testify that appellant indicated he had spoken to anyone at DMV. Instead, Farmer simply testified that appellant said he 'went to the DMV' – without giving any indication that appellant talked to anyone there."OMG! Somebody at the appellate court has figured out how to go to the DMV without having to speak with anyone there! How?!? I demand to know how to go to the DMV and not have to talk to at least three people before you can get anything done. Quit holding out on us judge; there's a lot of us who would pay good money to know your secret. Or maybe they have a special automated DMV just for judges . . .
16 May 2010
Quantum Mechanics for the Defense
VIRGINIA:
IN THE CIRCUIT COURT OF PITCAIRN COUNTY
Comes now the Defense and moves this honorable Court to dismiss these shoplifting charges on the following grounds:
It is well accepted that our universe is subject to the laws of physics.
A principal of quantum physics is that observables are indeterminate until they are observed. See e.g. Schrodigger's Cat.
Mr. Smith entered the WonderMart on 13 June, 2012.
Per quantum physics, whether Mr. Smith would commit the crime of shoplifting a portable computer was an indeterminate matter. It was possible that he would and possible that he would not.
The uncertainty was resolved when Officer Jones observed Mr. Smith pick up the Acer netbook and run out the door of WonderMart with it.
Therefore, it was Officer Jones' observation which caused the actual reality of the theft.
An agent of the government, a police officer, is the direct and sole cause of the theft, because his observations caused various indeterminate possibilities to congeal into a set reality wherein a theft occurred.
WHEREFORE, as observation by an officer of the government is the sole cause of the reality of the theft, the Defense moves for an immediate dismissal.
FURTHERMORE, Mr. Smith moves for a writ of prohibition forbidding police officers, bank agents, store employees, family members, and all others from taking any actions which would cause future potentialities to develop into actual crimes. These actions include, but are not limited to, surveillance, video taping, inventorying items, asking Mr. Smith if he stole an item, and any other action which would cause an observation that something illegal had occurred. Clearly, these acts would all coalesce indeterminate possibilities into a reality at Mr. Smith's expense and therefore must be prohibited.
I ask for this:
_______________
Robert Greene, Esq.
Wolfram & Hart, LLC
IN THE CIRCUIT COURT OF PITCAIRN COUNTY
COMMONWEALTH v. JOHN SMITH
CR12000541
MOTION TO DISMISS
CR12000541
MOTION TO DISMISS
Comes now the Defense and moves this honorable Court to dismiss these shoplifting charges on the following grounds:
It is well accepted that our universe is subject to the laws of physics.
A principal of quantum physics is that observables are indeterminate until they are observed. See e.g. Schrodigger's Cat.
Mr. Smith entered the WonderMart on 13 June, 2012.
Per quantum physics, whether Mr. Smith would commit the crime of shoplifting a portable computer was an indeterminate matter. It was possible that he would and possible that he would not.
The uncertainty was resolved when Officer Jones observed Mr. Smith pick up the Acer netbook and run out the door of WonderMart with it.
Therefore, it was Officer Jones' observation which caused the actual reality of the theft.
An agent of the government, a police officer, is the direct and sole cause of the theft, because his observations caused various indeterminate possibilities to congeal into a set reality wherein a theft occurred.
WHEREFORE, as observation by an officer of the government is the sole cause of the reality of the theft, the Defense moves for an immediate dismissal.
FURTHERMORE, Mr. Smith moves for a writ of prohibition forbidding police officers, bank agents, store employees, family members, and all others from taking any actions which would cause future potentialities to develop into actual crimes. These actions include, but are not limited to, surveillance, video taping, inventorying items, asking Mr. Smith if he stole an item, and any other action which would cause an observation that something illegal had occurred. Clearly, these acts would all coalesce indeterminate possibilities into a reality at Mr. Smith's expense and therefore must be prohibited.
I ask for this:
_______________
Robert Greene, Esq.
Wolfram & Hart, LLC
10 May 2010
Renico v. Lett
Standards for reviewing a State trial court's decision to declare a mistrial (green = trail court / blue = state appellate courts / red = federal appellate not to mess with / black = federal appellate will overturn). Renico
05 May 2010
Quote of the Week
Defense Attorney has just spent the 5 minutes explaining to the judge why my interpretation of a statute is wrong and 15 minutes explaining to the judge why his interpretation of the statute is right. Then he points at me in, raises his voice, and voice quavering states in high dudgeon:
"And, judge, I don't think a representative of the executive branch has any business telling a representative of the judicial branch how to interpret something written by the legislative branch!"
"And, judge, I don't think a representative of the executive branch has any business telling a representative of the judicial branch how to interpret something written by the legislative branch!"
03 May 2010
Virginia's New Laws
Okay, the Virginia General Assembly has had its two sessions and passed a bunch of laws which have been signed by the Governor. I went through and tried to get all the laws which are criminal law in nature and you can go read them all at Virginia Criminal Law & Cases (clickthru is in the right column). Here are some of the more interesting.
19.2-130.1 is being changed so that if a judge issues a capias and orders the defendant held without bond the magistrate cannot give that defendant a bond when he is arrested.
18.2-472.1(G)(2) is being changed so that the certificate of analysis only has to "provided with" the notice of right to demand the analyst's presence instead "attached to" it.
----------
COMMENT: Yes, someone must have actually stood in court and argued, "Why yes, Judge, the Commonwealth gave me timely notice and gave me both pieces of paper. However, they didn't staple the papers together and therefore they can't introduce the analysis."
----------
19.2-386.16(B) is being changed so that if you abduct someone or pander a juvenile prostitute you lose your car.
----------
COMMENT: Cuz that'll keep'em from doing that.
---------
9.1-903(J): If a sex offender doesn't have a legal residence he has to register the location of his cardboard box.
54.1-3420.1: Pharmacists have to keep track of who is getting schedule II drugs and keep it for a year.
18.2-308: You can now take your concealed weapon into the bar with you, but if you drink alcohol it is a class 2 misdemeanor. HOWEVER, federal, state, and local law enforcement officers are not subject to this law (because officers are all immune to alcohol).
18.2-308: It is not illegal to have a concealed firearm in a car if it is locked in a compartment or a container.
----------
COMMENT: Think goodness. No more weapon concealed in the locked glove compartment charges.
----------
46.2-857: It is reckless driving for two motorcycles to ride side by side in one lane, UNLESS the drivers are two officers on duty.
46.2-857: It is okay for cars in separate lanes to be side by side when one is passing the other.
----------
COMMENT: You've got to be kidding me. It's currently illegal to drive side by side while passing right now (law in effect 01 July 10)? What court is buying that argument?
---------
46.2-301.1: If you know someone has no license and that he has previously been convicted of driving without a license and you allow him to drive your car, you have committed a class 1 misdemeanor.
19.2-73(B): An officer with probable cause that a driver has driven under the influence within three hours can legally arrest the driver even if he did not see the driving (the law used to require the arresting officer to have seen it).
46.2-341.18(E): If someone with a commercial driver's license commits manslaughter in a commercial vehicle he cannot have a commercial license for 5 years.
----------
COMMENT: Really? Do we want someone who has committed manslaughter in a commercial vehicle to be back out there in another one?
----------
4.1-309.1: It is no longer legal to drive a school bus filled with kids while possessing or drinking alcohol.
---------
COMMENT: Sadly, this has to be in reaction to specific facts which occurred somewhere.
----------
29.1-521.1: If you bait an area to keep hunters from being able to hunt there legally, it is a class 3 misdemeanor.
----------
COMMENT: Hmmm . . . If you are interfering with hunters around these parts your worries probably shouldn't center around whether or not you are going to get a class 3 misdemeanor.
----------
---------- [ NONE OF THESE ARE IN EFFECT UNTIL 01 JULY 2010 ] ---------
19.2-130.1 is being changed so that if a judge issues a capias and orders the defendant held without bond the magistrate cannot give that defendant a bond when he is arrested.
18.2-472.1(G)(2) is being changed so that the certificate of analysis only has to "provided with" the notice of right to demand the analyst's presence instead "attached to" it.
----------
COMMENT: Yes, someone must have actually stood in court and argued, "Why yes, Judge, the Commonwealth gave me timely notice and gave me both pieces of paper. However, they didn't staple the papers together and therefore they can't introduce the analysis."
----------
19.2-386.16(B) is being changed so that if you abduct someone or pander a juvenile prostitute you lose your car.
----------
COMMENT: Cuz that'll keep'em from doing that.
---------
9.1-903(J): If a sex offender doesn't have a legal residence he has to register the location of his cardboard box.
54.1-3420.1: Pharmacists have to keep track of who is getting schedule II drugs and keep it for a year.
18.2-308: You can now take your concealed weapon into the bar with you, but if you drink alcohol it is a class 2 misdemeanor. HOWEVER, federal, state, and local law enforcement officers are not subject to this law (because officers are all immune to alcohol).
18.2-308: It is not illegal to have a concealed firearm in a car if it is locked in a compartment or a container.
----------
COMMENT: Think goodness. No more weapon concealed in the locked glove compartment charges.
----------
46.2-857: It is reckless driving for two motorcycles to ride side by side in one lane, UNLESS the drivers are two officers on duty.
46.2-857: It is okay for cars in separate lanes to be side by side when one is passing the other.
----------
COMMENT: You've got to be kidding me. It's currently illegal to drive side by side while passing right now (law in effect 01 July 10)? What court is buying that argument?
---------
46.2-301.1: If you know someone has no license and that he has previously been convicted of driving without a license and you allow him to drive your car, you have committed a class 1 misdemeanor.
19.2-73(B): An officer with probable cause that a driver has driven under the influence within three hours can legally arrest the driver even if he did not see the driving (the law used to require the arresting officer to have seen it).
46.2-341.18(E): If someone with a commercial driver's license commits manslaughter in a commercial vehicle he cannot have a commercial license for 5 years.
----------
COMMENT: Really? Do we want someone who has committed manslaughter in a commercial vehicle to be back out there in another one?
----------
4.1-309.1: It is no longer legal to drive a school bus filled with kids while possessing or drinking alcohol.
---------
COMMENT: Sadly, this has to be in reaction to specific facts which occurred somewhere.
----------
29.1-521.1: If you bait an area to keep hunters from being able to hunt there legally, it is a class 3 misdemeanor.
----------
COMMENT: Hmmm . . . If you are interfering with hunters around these parts your worries probably shouldn't center around whether or not you are going to get a class 3 misdemeanor.
----------
27 April 2010
Justified
5 second review: Justified? In what?30 second review: They want me to believe that's Kentucky?
Full review: This show is the perfect example of why you should film a TV show where you claim it is taking place.
The guy on the left, Marshal Raylen Givens, screws up in Florida. He gives a scumbag 24 hours to leave town and when the scumbag doesn't Marshal Givens shoots him dead. Of course, the scumbag drew first, so Givens is on the right side of the law by a razor thin margin. The result? The Marshal Service decides to move him back to Kentucky, where he grew up. From that point forward we get to see him hook up with a murdress, interact with his ex, do a superior job of marshaling, and shoot a bunch more people.
All-in-all, it's probably a slightly above average cop drama. However, it is unwatchable if you live, or have ever lived, in Kentucky. The people who wrote these scripts have never been to Kentucky and don't know anyone who has been. They just seem to pick locations out of thin air and throw them in. In the first episode they go from Lexington to Somerset to get a beer (that's a 2 hour drive for a beer). And they travel from Lexington to Harlan County like it's a 30 minute drive down the road (it's 3 hours). I don't know what city that is that they are trying to pass off as Lexington, but it's not even close. At least look at a photo or two of Lexington so that you can realize that THERE AIN'T ANY BIG STEEL BRIDGES IN LEXINGTON. There sure as heck isn't one on Tates Creek Road; take my word for it - I've driven that road a few times in my life. In fact, nothing I've seen in this show looks like Kentucky.
And then there's the people. What accents are those which are being thrown around? I've never heard them before. And, I haven't heard a Kentucky conversation from a single one of them. By that I mean that nobody's mentioned basketball - not a single person. This is a State wherein I was watching an NFL playoff game last year and the local channel cut in and broadcast a high school basketball game instead. People in Kentucky talk about basketball. No, that's not quite right. People in Kentucky talk incessantly, all the time, in every conversation, every day about UK basketball. They criticize the coach. They weigh the skill level of players. They talk about possible recruits. They live in expectation that the coach will get a national championship every three or four years. If he doesn't they will rip apart every second of every game, talking about every stupid thing the coach did. Heck, they'll even do this if he's a winning coach; it is impossible for a UK coach to satisfy the fans. They are everywhere. That Marshal's office in Lexington would have UK stuff on at least half the desks and cubicle walls. About 40% of the people in town - and in the counties - would be wearing UK clothes every day. Apparently, in whatever alternate reality this show takes place in basketball doesn't even exist.
C'mon. If you were going to shoot in Genericsville, Pennsylvania, you should have just put your show's location in Pennsylvania. It'd be a better fit. Since a good deal of your "location" shots are just green screen through a car window, you could at least have driven through Kentucky/Lexington/Harlan County to get those shots. Yeesh.
23 April 2010
The Big 4
copyright 2010 Ken Lammers Jr
ATTENTION ALL DEFENSE ATTORNEYS: I am hereby copyrighting each and every one of the Big 4 reasons that defendants can't possibly go to jail for the crime they've committed. Should your client use or attempt to use Job, Family, Illness, or I Found God - or any variation or combination thereof - there shall be a $5.00 fee payable to Ken Lammers Jr. Payment shall be for each individual usage of a particular Big 4 reason, even if they are used in combination. As well, the fact that the Big 4 neither caused the judge to dismiss all charges and apologize nor led to any better result than the defendant could have received otherwise does not waive or abrogate the duty to pay for use my copyrighted material.
Payment is acceptable by cash, cashier's check, or money order. Checks on a defendant's account shall not be acceptable. However, payment from an attorney's trust account on behalf of the defendant shall be accepted.
BE ADVISED: There is no explicit warranty and no implicit warranty in the usage of my copyrighted Big 4 reasons. Use of the Big 4 is at your own risk and results shall vary depending on numerous conditions outside the control of the holder of the copyright.
19 April 2010
The Guilt Project:
Rape, Morality, and Law
I rate this book a 3 out of 5. As a whole concept it fails, but if you read it like you would a blog - section by section without an expectation of a strongly coherent whole - it can provoke thought.For the first two sections of this book, I was searching for some coherent theme. Expecting the book to be either about the nuts and bolts of representing rapist on appeal or a screed against the evils of the system, I found a book wherein there's a lot of stream of thought which wanders between philosophy, sociology, reality, theory, and personal affect. It keeps harrying off into stream of consciousness every time you turn a page - or even start to read a new paragraph. Generally the thoughts are interesting, but they only link together with the barest of threads.
Before I had finished reading the Introduction and Section I: Guilt and Me, I was convinced that this was a blogger who had decided to put all her blog posts together as best she could into a book. I stopped and looked up the author sure that I would find a public defender blog tied to Vanessa Place. I was wrong.
It turns out that Vanessa Place is actually an author of poems and "experimental literature." Apparently, her most famous writing is a 50,000 word 177 page book Dies: A Sentence. Why is it famous? Because she only uses one period in the entire book (on page 117). Here's an excerpt:
Not my cup of tea, but not terrible either. Still, between this and the way the Intro and Section I went, I was beginning to wonder about this lady writing appellate briefs.
No worries, in the next three sections she shows that she knows the her stuff inside and out - the way you can only know it if you've spent the time researching and arguing a subject. It's hit or miss; some sections are extremely informative while others are expositions on philosophy and sociology.
I'm torn by this book. I found parts informative and some downright fascinating. If the subsections had been broken down and been individual blog entries I would be full of praise for an insightful, well thought through blog. But as a whole book it just doesn't hang together. Balancing these two impulses out, I have rated it a 3.
5: Touched by God - a work which makes Shakespeare look infantile[addendum]For the record, I was given a courtesy copy of the book by a publicist, but later bought a copy for my Kindle.
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves
16 April 2010
12 April 2010
Bubonic Bob
& The a Smart Judge
Bubonic Bob was back in court a couple weeks ago. Bob earned his nickname from the fact that no matter what punishment a judge or prosecutor offers he has a condition which will preclude it. On the other hand, none of these conditions have yet stopped him from going into the local S-Mart and trying to leave without taking his items through that pesky checkout line. Most recently, his conditions also hadn't stopped him from writing a bunch of bad checks to about 7 local stores. I didn't see the original trial, but somebody gave Bob a break because his prior record should have gotten him at least 6 months. Instead he got 10 days in jail and 30 hours of community service. And therein was to be found the problem. It had been over a year and Bob hadn't done a single hour of his community service.
Probation officer testified that Bob had claimed that knee and back problems kept him from doing the usual trash pickup. Probation Officer had told Bob to bring in some sort of letter from the doctor proving his ailments. Bob put Probation Officer off for over 9 months - nary a medical record in sight - and finally Probation Officer decided to violate Bob. Since that time there'd been two continuance granted by the court so that Bob could get the paperwork and bring it to the court. Probation Officer wants either jail or at least that Bob be forced to do his community service.
Then Defense Counsel calls Bob. Bob has the magic ticket held triumphantly in his hands. He gives it to Defense Counsel who gives it to the judge. Prosecutor has to ask to see it. I couldn't see it, but from Prosecutor's reaction it was probably the same thing we see all the time from a doctor who writes something to get a patient to quit bothering him: a general letter which states there is some problem, but doesn't really state that it is serious or how the problem should limit the activities of the defendant.
Bob testifies that he can't do the physical labor of picking up trash because of his knee and back problems. On cross, Prosecutor points out that the letter doesn't say that. Bob counters that the letter says he shouldn't over-exert himself because of these problems and that the doctor told him that meant not being on his feet for over 20 minutes. Prosecutor asked why Bob hadn't brought the letter in when Probation Officer asked for it. Bob counters that he couldn't afford to pay the doctor for the letter - "No matter why you go to see Dr. Smith, it costs $750 just to get an appointment." Asked why he couldn't do community service where he could just answer phones Bob counters that his man-ear would only allow him to do that for an hour at a time. Asked why he agreed to community service Bob states that he didn't; he just agreed to do some jail and the judge stuck the community service on the order after he'd already gone to jail. Asked if he had any problems just doing jail time Bob states that the problem with that is that they won't let him have his pills for his "sugar", blood-pressure, and back pain _ "The last time I was in for a week and it took 3 months to things back to normal, cuz they wouldn't let me have my pills." Then the judge and Bob have a conversation about whether Bob smokes or not. Bob bobs and weaves a bit, but then claims he quit a year back because he's got "OCP" (I think he actually meant COPD - I've not met anyone who stopped because of river blindness). Watching Bob testify is watching a maestro in action. He may not be the most educated guy in the room, but he's mentally agile. There's an answer for everything and for everything there's an answer.
You can just see by the demeanor of Probation Officer and Prosecutor, they think that Bubonic Bob is going to skate yet again. Bob himself is looking rather smug. He's answered all the questions and his bastion of diseases is going to yet again serve him well. Then the judge weighed in.
"Mr. Bob, there's a tree in front of this courthouse. Probation Officer is at this courthouse on Tuesday, Wednesday, and Thursday. On each of these days of the week, you shall come to the courthouse and report to Probation Officer. Then you shall go down to that tree and sit and count cars. From 9 to 12 you shall count the cars which turn left from Broad Street onto 16th. From 1 to 4 you shall count the cars which turn right from 16th Street on to Broad. At the end of the day you will turn over the paper with the number of cars to Probation Officer. You will repeat this until you have completed all your community service hours."
Brilliant! I mean, I wouldn't want it for 99.999% of offenders, but it's something Bob will have a hard time getting out of medically and it will drive him nuts just sitting there all day (the tree is in the middle of a big lawn where nobody goes). Do I think he'll actually count cars? Nope. He'll make up numbers. However, I also think that he "misremembered" when he told the judge he quit smoking a year ago. Basically, the judge sentenced Bob to sit someplace where he can't talk to anyone but is in clear sight so that he can't smoke and prove that he lied to the court.
Maybe I'm just happy because I thought Bob was going to get away with it again. And, when I think about it rationally, Bob probably got off too light. Still, this is the coolest sentence I've seen in a while.
Probation officer testified that Bob had claimed that knee and back problems kept him from doing the usual trash pickup. Probation Officer had told Bob to bring in some sort of letter from the doctor proving his ailments. Bob put Probation Officer off for over 9 months - nary a medical record in sight - and finally Probation Officer decided to violate Bob. Since that time there'd been two continuance granted by the court so that Bob could get the paperwork and bring it to the court. Probation Officer wants either jail or at least that Bob be forced to do his community service.
Then Defense Counsel calls Bob. Bob has the magic ticket held triumphantly in his hands. He gives it to Defense Counsel who gives it to the judge. Prosecutor has to ask to see it. I couldn't see it, but from Prosecutor's reaction it was probably the same thing we see all the time from a doctor who writes something to get a patient to quit bothering him: a general letter which states there is some problem, but doesn't really state that it is serious or how the problem should limit the activities of the defendant.
Bob testifies that he can't do the physical labor of picking up trash because of his knee and back problems. On cross, Prosecutor points out that the letter doesn't say that. Bob counters that the letter says he shouldn't over-exert himself because of these problems and that the doctor told him that meant not being on his feet for over 20 minutes. Prosecutor asked why Bob hadn't brought the letter in when Probation Officer asked for it. Bob counters that he couldn't afford to pay the doctor for the letter - "No matter why you go to see Dr. Smith, it costs $750 just to get an appointment." Asked why he couldn't do community service where he could just answer phones Bob counters that his man-ear would only allow him to do that for an hour at a time. Asked why he agreed to community service Bob states that he didn't; he just agreed to do some jail and the judge stuck the community service on the order after he'd already gone to jail. Asked if he had any problems just doing jail time Bob states that the problem with that is that they won't let him have his pills for his "sugar", blood-pressure, and back pain _ "The last time I was in for a week and it took 3 months to things back to normal, cuz they wouldn't let me have my pills." Then the judge and Bob have a conversation about whether Bob smokes or not. Bob bobs and weaves a bit, but then claims he quit a year back because he's got "OCP" (I think he actually meant COPD - I've not met anyone who stopped because of river blindness). Watching Bob testify is watching a maestro in action. He may not be the most educated guy in the room, but he's mentally agile. There's an answer for everything and for everything there's an answer.
You can just see by the demeanor of Probation Officer and Prosecutor, they think that Bubonic Bob is going to skate yet again. Bob himself is looking rather smug. He's answered all the questions and his bastion of diseases is going to yet again serve him well. Then the judge weighed in.
"Mr. Bob, there's a tree in front of this courthouse. Probation Officer is at this courthouse on Tuesday, Wednesday, and Thursday. On each of these days of the week, you shall come to the courthouse and report to Probation Officer. Then you shall go down to that tree and sit and count cars. From 9 to 12 you shall count the cars which turn left from Broad Street onto 16th. From 1 to 4 you shall count the cars which turn right from 16th Street on to Broad. At the end of the day you will turn over the paper with the number of cars to Probation Officer. You will repeat this until you have completed all your community service hours."
Brilliant! I mean, I wouldn't want it for 99.999% of offenders, but it's something Bob will have a hard time getting out of medically and it will drive him nuts just sitting there all day (the tree is in the middle of a big lawn where nobody goes). Do I think he'll actually count cars? Nope. He'll make up numbers. However, I also think that he "misremembered" when he told the judge he quit smoking a year ago. Basically, the judge sentenced Bob to sit someplace where he can't talk to anyone but is in clear sight so that he can't smoke and prove that he lied to the court.
Maybe I'm just happy because I thought Bob was going to get away with it again. And, when I think about it rationally, Bob probably got off too light. Still, this is the coolest sentence I've seen in a while.
11 April 2010
Quotes from The Guilt Project:
Rape, Morality and Law
Got this book to review (also bought the Kindle version). I haven't finished reading it yet and I'm one of those strange people who won't actually review a book without reading it. However, here are some interesting quotes from the book so far.
On sex with a drunk woman equaling rape: "The real snake is the thesis that women are like children, and like children, must be protected from themselves."According to my Kindle, I'm 57% of the way through the book. I'll comment on the meat of it when I get to 100%.
Explaining why women can't consent to prostitution under the "domination theory": "Women who voluntarily engage in prostitution have been involuntarily recruited by daily patriarchal practices and institutional ideology: a woman whores because it's a man's world."
"Feminism and prostitution, those twin administrations of women's bodies, each claiming province of their hearts and minds, have been conjoined since the Victorian era."
"In the too-liberal imagination, each of the Seven Deadly Sins is attributed to a mutilated Me: the glutton is only starved for affection, the violent lashes out to reach out, and the murderous just doesn't get the rest of us."
08 April 2010
Padilla & the Prosecutor
So, how does Padilla v. Kentucky affect those of us on the prosecution side of the aisle?
It's more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let's look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:
Immigration effects has been a major meme that has been thrust upon criminal practitioners for a while now. It seems like every CLE has one hour in which a professor or immigration lawyer stands in front of the room and lectures on consequences of convictions. Meanwhile, the practitioners browse the web, read newspapers, work on that brief due Friday (you know - what practitioners do at every CLE). I've actually tried to pay attention and come to one conclusion. There is no way that anyone who is not steeped in the labyrinthine disaster zone which is immigration law can possibly advise a defendant properly. To quote myself:
The problem is compounded by the reality on the ground. Immigration officials are stretched thin. I currently work in an area where there aren't a large number of immigrants in the system. However, before I came here I was in a locale where it was not unusual to see several immigrants per day in court. I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, "Yes, the feds can deport, but they don't want to be bothered unless there is a violent felony." Of course, it wasn't always phrased quite so blandly. So, the attorney in Padilla's case may have been giving what was basically reality based advice based upon experience. I haven't seen the feds swoop in and deport people therefore, they shan't do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla's case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.
So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren't going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn't notified. Hopefully, judges will start adding the question to the plea colloquy, "Are you aware that if you are an immigrant a conviction may effect your immigration status?" Unfortunately, I can't do anything to effect that change. However, I can change the language in my plea agreements (whether or not Scott will advise his clients to sign them). Henceforth, all my plea agreements will contain the following language:
It's more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let's look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:
National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).Now, let's compare that to the real world courts which have rejected this idiocy (and which Justice Stevens buries in a footnote):
United States v. Gonzalez, 202 F. 3d 20 (CA1 2000); United States v. Del Rosario, 902 F. 2d 55 (CADC 1990); United States v. Yearwood, 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States, 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F. 3d 1251 (CA10 2004); United States v. Campbell, 778 F. 2d 764 (CA11 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183 Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban, 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552, 555 A. 2d 92 (1989).So, on the the one side we have actual courts which recognize the reality. On the other side we have a widely disparate set of habeas-bait "standards" (invariably impossible to follow: see this post), never used procedural books (I'd even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don't have time to waste with that organization), and a law review article (you're kidding?!? tell me you're kidding). On one side are 11 courts (including Kentucky) which have held the opposite of Justice Stevens decided (btw, where's the circuit/State supreme courts split that required the federal supreme court to step in address this issue?); on the other side are the best sources which Stevens' clerks could scrape up by combing through the law library. This just screams of results oriented rationalization.
Immigration effects has been a major meme that has been thrust upon criminal practitioners for a while now. It seems like every CLE has one hour in which a professor or immigration lawyer stands in front of the room and lectures on consequences of convictions. Meanwhile, the practitioners browse the web, read newspapers, work on that brief due Friday (you know - what practitioners do at every CLE). I've actually tried to pay attention and come to one conclusion. There is no way that anyone who is not steeped in the labyrinthine disaster zone which is immigration law can possibly advise a defendant properly. To quote myself:
Then came a section on collateral effects of a criminal conviction on aliens. What did I take away from this section? If you're a defense attorney and your client is an alien, call an immigration attorney because you will never be able to figure out the morass that is immigration law.IMO, the best a practicing defense attorney can really advise an immigrant client is that a conviction might effect his immigration status. More than that and the attorney is really speculating.
The problem is compounded by the reality on the ground. Immigration officials are stretched thin. I currently work in an area where there aren't a large number of immigrants in the system. However, before I came here I was in a locale where it was not unusual to see several immigrants per day in court. I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, "Yes, the feds can deport, but they don't want to be bothered unless there is a violent felony." Of course, it wasn't always phrased quite so blandly. So, the attorney in Padilla's case may have been giving what was basically reality based advice based upon experience. I haven't seen the feds swoop in and deport people therefore, they shan't do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla's case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.
So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren't going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn't notified. Hopefully, judges will start adding the question to the plea colloquy, "Are you aware that if you are an immigrant a conviction may effect your immigration status?" Unfortunately, I can't do anything to effect that change. However, I can change the language in my plea agreements (whether or not Scott will advise his clients to sign them). Henceforth, all my plea agreements will contain the following language:
Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.
07 April 2010
Virginia Supreme Court
Arguments in April
Case name followed by assigned error(s):
Newby v. Commonwealth, No. 091247:
The Court of Appeals erred in upholding the trial court’s error in denying Newby’s Motion to Strike the Evidence, both at the conclusion of the Commonwealth’s evidence and at the conclusion of all the evidence, on the grounds that the evidence did not prove that he had committed any portion of the offense alleged in the City of Hampton, Virginia.
Herndon v. Commonwealth, No 091265:
The Court of Appeals erred in affirming the trial court’s admission of the certificate of analysis contained in Commonwealth’s Exhibit 1 into evidence, because the item described in the certificate of analysis was not shown to be the same item the officer submitted to the laboratory.
Cokes v. Commonwealth, No. 091507:
The Court of Appeals erred by holding that the trial court did not abuse its discretion by denying Cokes’ request to withdraw his jury trial waiver and to proceed with a jury trial.
Midkiff v. Commonwealth, No. 091793:
The trial court erred in admitting into evidence, over Petitioner's objection, images which were not taken directly from the hard drive of the computer seized from Petitioner's home because they were neither the best evidence of the images nor reliable evidence of the images.
Carter v. Commonwealth, No. 091895:
The Commonwealth failed to prove the grand larceny indictment, that paint was stolen from the store.
Newby v. Commonwealth, No. 091247:
The Court of Appeals erred in upholding the trial court’s error in denying Newby’s Motion to Strike the Evidence, both at the conclusion of the Commonwealth’s evidence and at the conclusion of all the evidence, on the grounds that the evidence did not prove that he had committed any portion of the offense alleged in the City of Hampton, Virginia.
Herndon v. Commonwealth, No 091265:
The Court of Appeals erred in affirming the trial court’s admission of the certificate of analysis contained in Commonwealth’s Exhibit 1 into evidence, because the item described in the certificate of analysis was not shown to be the same item the officer submitted to the laboratory.
Cokes v. Commonwealth, No. 091507:
The Court of Appeals erred by holding that the trial court did not abuse its discretion by denying Cokes’ request to withdraw his jury trial waiver and to proceed with a jury trial.
Midkiff v. Commonwealth, No. 091793:
The trial court erred in admitting into evidence, over Petitioner's objection, images which were not taken directly from the hard drive of the computer seized from Petitioner's home because they were neither the best evidence of the images nor reliable evidence of the images.
Carter v. Commonwealth, No. 091895:
The Commonwealth failed to prove the grand larceny indictment, that paint was stolen from the store.
06 April 2010
Appeals Accepted by the
Virginia Supreme Court March 2010
Case followed by the assignment of error(s):
Sidney Jr. v. Commonwealth, No. 092313:
1. The Court of Appeals erred by upholding the trial court's refusal to suppress the evidence where the petitioner was detained without probable cause or a reasonable suspicion in violation of his rights under the Fourth Amendment of the U.S. Constitution and comparable parts of the Virginia Constitution, and where the evidence was obtained as a result of this detention.
2. The Court of Appeals erred by concluding that the anonymous tip and dispatch to police supported the seizure of the petitioner, where the tip and dispatched information were not from an informant whose reliability was established and the information provided in the tip was not predictive and was otherwise insufficient to support the seizure of the petitioner.
3. The Court of Appeals erred by concluding that the tip and dispatch information supported the seizure of the petitioner where the mere fact that a warrant was on file for Allen Sidney did not make the otherwise unreliable tip reliable enough to support the seizure of petitioner under the circumstances of this case.
Perry v. Commonwealth, No. 092418:
1. The Circuit Court erred in denying Appellant’s motion to suppress evidence obtained in violation of his constitutional rights.
2. The Court of Appeals erred by considering a new justification for the illegal search, which was never presented to the trial court.
3. The Court of Appeals erred in finding that Trooper Weidhaas had probable cause to arrest Appellant at the time of the illegal search.
Bennett v. Commonwealth, 092085:
1. The appellate court erred in finding the Commonwealth had proven at least one prior firearms conviction thereby imposing a sentence on the firearms charges of three and five years, respectively.
McGhee v. Commonwealth, No. 091274:
1. The Court of Appeals erred in ruling that the trial court did not err in denying the motion to suppress the evidence because there was no probable cause for arrest and because the search of the car was invalid.
Commonwealth v. Moirris, No. 092163:
1. The Trial Court erred in its decision finding authority to apply the Writ of Coram Vobis, or alternatively the Writ of Audita Querela, as an appropriate remedy.
2. The Trial Court erred in granting Appellee relief under the Writ of Coram Vobis.
Bly v. Commonwealth, No. 092064:
ERROR: The trial court erred in not granting the defendant a new trial when it was discovered that exculpatory evidence was not disclosed to the defendant prior to trial.
CROSS ERROR: The Court of Appeals, although correctly finding no prejudice as a result of the non-disclosure, erred by failing to also find that Bly did not establish the second requirement of the Brady test: that the non-disclosed information either was itself admissible evidence or would have led to evidence that was.
Carroll v. Commonwealth, No. 091987:
1. The Court of Appeals erred in finding that, at the close of the evidence at appellant’s revocation hearing, appellant did not argue that the trial court could not find him in violation of probation because of the terms of any plea agreement.
2. The Court of Appeals erred in holding that it could not consider the plea agreement terms of appellant’s Alford plea as a basis for reversal of the trial court’s revocation, because appellant did not ask the Court of Appeals to consider whether the trial court’s decision finding that appellant was in violation of his probation was a breach of the terms of the plea agreement between appellant and the Commonwealth.
3. The Court of Appeals erred, based upon the facts of this case, in affirming the Court’s revocation of appellant’s probation because appellant refused to accept responsibility in sex-offender treatment by admitting to rape based upon his Alford plea as a matter of law.
4. The Court of Appeals erred in holding that the trial court did not abuse its discretion in denying appellant’s request to consider a reasonable alternative treatment modality, such as individual sex-offender therapy, in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated.
Sidney Jr. v. Commonwealth, No. 092313:
1. The Court of Appeals erred by upholding the trial court's refusal to suppress the evidence where the petitioner was detained without probable cause or a reasonable suspicion in violation of his rights under the Fourth Amendment of the U.S. Constitution and comparable parts of the Virginia Constitution, and where the evidence was obtained as a result of this detention.
2. The Court of Appeals erred by concluding that the anonymous tip and dispatch to police supported the seizure of the petitioner, where the tip and dispatched information were not from an informant whose reliability was established and the information provided in the tip was not predictive and was otherwise insufficient to support the seizure of the petitioner.
3. The Court of Appeals erred by concluding that the tip and dispatch information supported the seizure of the petitioner where the mere fact that a warrant was on file for Allen Sidney did not make the otherwise unreliable tip reliable enough to support the seizure of petitioner under the circumstances of this case.
Perry v. Commonwealth, No. 092418:
1. The Circuit Court erred in denying Appellant’s motion to suppress evidence obtained in violation of his constitutional rights.
2. The Court of Appeals erred by considering a new justification for the illegal search, which was never presented to the trial court.
3. The Court of Appeals erred in finding that Trooper Weidhaas had probable cause to arrest Appellant at the time of the illegal search.
Bennett v. Commonwealth, 092085:
1. The appellate court erred in finding the Commonwealth had proven at least one prior firearms conviction thereby imposing a sentence on the firearms charges of three and five years, respectively.
McGhee v. Commonwealth, No. 091274:
1. The Court of Appeals erred in ruling that the trial court did not err in denying the motion to suppress the evidence because there was no probable cause for arrest and because the search of the car was invalid.
Commonwealth v. Moirris, No. 092163:
1. The Trial Court erred in its decision finding authority to apply the Writ of Coram Vobis, or alternatively the Writ of Audita Querela, as an appropriate remedy.
2. The Trial Court erred in granting Appellee relief under the Writ of Coram Vobis.
Bly v. Commonwealth, No. 092064:
ERROR: The trial court erred in not granting the defendant a new trial when it was discovered that exculpatory evidence was not disclosed to the defendant prior to trial.
CROSS ERROR: The Court of Appeals, although correctly finding no prejudice as a result of the non-disclosure, erred by failing to also find that Bly did not establish the second requirement of the Brady test: that the non-disclosed information either was itself admissible evidence or would have led to evidence that was.
Carroll v. Commonwealth, No. 091987:
1. The Court of Appeals erred in finding that, at the close of the evidence at appellant’s revocation hearing, appellant did not argue that the trial court could not find him in violation of probation because of the terms of any plea agreement.
2. The Court of Appeals erred in holding that it could not consider the plea agreement terms of appellant’s Alford plea as a basis for reversal of the trial court’s revocation, because appellant did not ask the Court of Appeals to consider whether the trial court’s decision finding that appellant was in violation of his probation was a breach of the terms of the plea agreement between appellant and the Commonwealth.
3. The Court of Appeals erred, based upon the facts of this case, in affirming the Court’s revocation of appellant’s probation because appellant refused to accept responsibility in sex-offender treatment by admitting to rape based upon his Alford plea as a matter of law.
4. The Court of Appeals erred in holding that the trial court did not abuse its discretion in denying appellant’s request to consider a reasonable alternative treatment modality, such as individual sex-offender therapy, in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated.
04 April 2010
29 March 2010
Intent? We don't need no stinking Intent!
Tomorrow, I'm going to be doing a presentation at the local Bench-Bar conference on the interesting cases of the last year. While prepping yesterday, I reread a case from the Virginia Court of Appeals, Herron v. Commonwealth. In Herron the defendant was arrested and taken to jail. On the way, the officer asked Herron several times if he had drugs and each time Herron said that he did not. Of course, once he got to jail and was searched, Herron had drugs. He was convicted of bringing drugs into a jail.
At trial, and on appeal, Herron argued that he had a right not to incriminate himself when he told the officer he had no drugs and that he didn't have any intent to bring the drugs into the jail because he didn't have any intent to go to jail - he was put in jail against his will.
Personally, I would have handled this in a fairly typical fashion. A standard jury instruction (and case law) in Virginia states that "A person can be inferred to intend the natural consequences of his actions." He doesn't have tell the officer anything, but when he doesn't and ends up in jail with drugs, he intended to go into the jail with the drugs rather than get charged with simple possession by the officer. I think this is a pretty straight forward analysis. However, the Court of Appeals chose a different path.
The Virginia Court of Appeals shoots down the 5th Amendment argument in a manner similar to what I laid out above (you can remain silent, but that doesn't mean you aren't guilty of your acts), but the really interesting part of the decision is about whether Herron had intent to carry the drugs into the jail.
Here the Court of Appeals goes off onto a tangent which I would not have expected from this case. Relying on Esteban v. Commonwealth, from the Virginia Supreme Court, the Court of Appeals states that because this statute was not in the common law and the General Assembly did not write an intent into the statute it is a strict liability criminal statute and Herron's intent is irrelevant.
This is a disturbing trend in Virginia criminal law. Prior to Esteban declaration of criminal law strict liability there was a solid argument based both in case law and statutes that there must be intent in all criminal law statutes. In fact, here's the argument as the Virginia Supreme Court received it in Esteban (a teacher convicted for bringing a pistol to school after she forgot it was in her bag):
It's a terrible precedent, based upon a shaky line of reasoning. The two primary Virginia cases upon which this was based were Maye v. Commonwealth, JUN72, 213 Va. 48, and Makarov v. Commonwealth, OCT76, VaSC No. 751263. In Maye the VaSC found a statute without an intent element constitutional because:
But here we come full circle, back to the case we started with, Herron. The Virginia Court of Appeals partially overrules the VaSC's Esteban holding. Recall that in Esteban the VaSC rejected the Commonwealth being required to prove she "knew she possessed the firearm." In Herron the VaApp adopts the "voluntary act" test, even in strict liability crimes:
I hope that all this nonsense gets overturned some day or that the General Assembly writes a statue requiring intent in each and every criminal offense. But, if we have to have strict liability criminal statutes, I prefer the Court of Appeals' version to that of the Supreme Court.
.
At trial, and on appeal, Herron argued that he had a right not to incriminate himself when he told the officer he had no drugs and that he didn't have any intent to bring the drugs into the jail because he didn't have any intent to go to jail - he was put in jail against his will.
Personally, I would have handled this in a fairly typical fashion. A standard jury instruction (and case law) in Virginia states that "A person can be inferred to intend the natural consequences of his actions." He doesn't have tell the officer anything, but when he doesn't and ends up in jail with drugs, he intended to go into the jail with the drugs rather than get charged with simple possession by the officer. I think this is a pretty straight forward analysis. However, the Court of Appeals chose a different path.
The Virginia Court of Appeals shoots down the 5th Amendment argument in a manner similar to what I laid out above (you can remain silent, but that doesn't mean you aren't guilty of your acts), but the really interesting part of the decision is about whether Herron had intent to carry the drugs into the jail.
Here the Court of Appeals goes off onto a tangent which I would not have expected from this case. Relying on Esteban v. Commonwealth, from the Virginia Supreme Court, the Court of Appeals states that because this statute was not in the common law and the General Assembly did not write an intent into the statute it is a strict liability criminal statute and Herron's intent is irrelevant.
This is a disturbing trend in Virginia criminal law. Prior to Esteban declaration of criminal law strict liability there was a solid argument based both in case law and statutes that there must be intent in all criminal law statutes. In fact, here's the argument as the Virginia Supreme Court received it in Esteban (a teacher convicted for bringing a pistol to school after she forgot it was in her bag):
At trial, the instruction in issue would have required the Commonwealth to prove that defendant "knew she possessed the firearm." The defendant contends the trial court erred in refusing the instruction because, she argues, mens rea is an element of this statutory offense.That is a well thought out, well reasoned, and persuasive argument for the inclusion of intent in every criminal law statute. And yet, despite this smart, cogent argument the Virginia Supreme Court created the strict liability criminal law statute - or at least stated that the General Assembly could do so as long as the crime in question did not have common law roots.
In support of her argument, the defendant refers to Code § 1-10, which provides that the common law of England, "insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly." See Weishaupt v. Commonwealth, 227 Va. 389, 399-400, 315 S.E.2d 847, 852 (1984).
The defendant relies upon the proposition, set forth in Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974), that a statute must be "read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law." This is because the General Assembly "is presumed to have known and to have had the common law in mind in the enactment of a statute." Id.
Continuing, the defendant relies upon the following statement in Parrish v. Commonwealth, 81 Va. 1, 14 (1884), that "whenever a statute makes any offence [a] felony, it incidentally gives it all the properties of a felony at common law." The defendant points out that the requirement of some mens rea for a crime was deeply embedded in the common law, and that the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence, citing Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).
Thus, defendant contends, because the offense charged here is a felony, mens rea must be read into the statute as an element of the offense, even though the statute does not include an express mens rea element.
It's a terrible precedent, based upon a shaky line of reasoning. The two primary Virginia cases upon which this was based were Maye v. Commonwealth, JUN72, 213 Va. 48, and Makarov v. Commonwealth, OCT76, VaSC No. 751263. In Maye the VaSC found a statute without an intent element constitutional because:
A claim that a statute on its face contains no requirement of Mens rea or Scienter is no ground for holding the statute unconstitutional since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved.In Makarov the VaSC found a statute unconstitutional because it lacked an intent element, explaining that in Maye:
We upheld the constitutionality of the enactment and decided that a requirement of Mens rea or Scienter should be read into the statute because it appeared the General Assembly 'implicitly intended' that such be proved. 213 Va. at 49, 189 S.E.2d at 351. There, we construed a statute specifically dealing [217 Va. 386] with larceny, a crime which presupposes a Mens rea. But here the statute on its face deals with a naked civil debt and we cannot say the General Assembly implicitly meant to include proof of an intent to defraud as an essential element of the offense.If you turn your head at the right angle and squint, you can use these cases to reach the result the VaSC reached in Esteban. That is to say, there is no intent required in a criminal offense unless there was an intent required in the offense under the common law as it stood in 1776 (independence from British rule leading to a freezing of the common law). The General Assembly might grace the citizens of Virginia with some sort of intent in any statute it passed after 1776, but nothing keeps the General Assembly from passing a law which states it is illegal to roll over in one's sleep and then arresting us in job lots when we do so while we are unconscious.
But here we come full circle, back to the case we started with, Herron. The Virginia Court of Appeals partially overrules the VaSC's Esteban holding. Recall that in Esteban the VaSC rejected the Commonwealth being required to prove she "knew she possessed the firearm." In Herron the VaApp adopts the "voluntary act" test, even in strict liability crimes:
[E]ven if [a statute] is a strict liability offense, the Commonwealth still must prove that appellant committed a voluntary act. All crimes of affirmative action, even strict liability crimes, require something in the way of a mental element-at least an intention to make the bodily movement which constitutes the act which the crime requires.That doesn't mesh with the Esteban opinion. If the school teacher did not know she possessed the firearm, she couldn't have intended to do the "voluntary act" of carrying it into the school. Thus the standard for strict liability in the Virginia Supreme Court is absolute strict liability while the standard for strict liability in the Virginia Court of Appeals is a limited strict liability.
I hope that all this nonsense gets overturned some day or that the General Assembly writes a statue requiring intent in each and every criminal offense. But, if we have to have strict liability criminal statutes, I prefer the Court of Appeals' version to that of the Supreme Court.
.
25 March 2010
Reviewing the Kindle
Recently, I bought the Kindle. I had thought of buying various different readers, but eventually went with the Kindle because the Sony Touch was slightly more expensive and there has been some talk that the Touch isn't quite as sharp. I bought the smaller one because I can't picture having the larger screen without the ability to use a stylus to write notes. If I'd bought a larger screen ereader I would have gone with Sony's for that reason and its lower price. The Kindle, at $259. was the best price for an ereader that I trust.
The Good: When you use the Kindle for what it is built for it does an amazing job. It is the perfect replacement for paperbacks. The e-ink is crystal clear and it's not another glowing screen to wear out your eyes. You can adjust the font size and I did bump it up a size because of my eyes which were never so great and which have been worn out by too much staring at glowing screens; if you have younger eyes you may bump it down a size to get more on one screen. You can hold the tablet easily in one hand and click the button to change the page with your thumb. Personally, I suggest that you don't get one of the many covers which make the Kindle look like a book and will require you to use both hands like a book. It just works perfectly as a one hand device.
Prices at Amazon are generally very reasonable. Amazon held the line at $9.99 maximum for all e-books until recently. When Apple sold consumers down the river in order to get publishers to come to its bookstore for the iPad Amazon was forced to give ground. Still, I think the highest price I saw was $14.99 and I found a number of classic books, such as Blackstone, for $.99 (I even found Moby Dick available free of charge). Outside of Amazon, other companies can provide digital books which work on the Kindle through various formats. Some companies are reasonable about this and some are insane enough to think that I'll pay the price of a hardbound book even if they haven't paid for ink or paper or shipping or the profit the brick and mortar would have taken.
All-in-all, once ereaders come down to a reasonable price (they really should be $99 or lower), there will be no reason for anyone to buy a paperback anymore except sheer stubbornness. The only reason to buy hardbound books will be to have the book on a shelf to impress people.
The Bad: The thing I'm most upset about has nothing to do with Amazon. It has to do with legal publishers. This would be a good medium for legal trial books - the ones companies put out every year for practitioners to take to court with them so that they are able to make arguments on the fly. Specifically, I checked for Criminal Offenses and Defense in Virginia, The Law of Evidence in Virginia (usually called "Friend"), Police, Crimes and Offenses and Motor Vehicle Laws of Virginia (yearly selected codes for crime and traffic), and the Annotated codes (both Lexis and West). None of these were available. Neither West nor Lexis had any useful books which could be downloaded on the Kindle. Last year, West announced that it was putting 30 of its books out for the Kindle, but there wasn't a single one of them which was really of use.
The Other: PDF's don't work well on the Kindle; it shrinks them in size and can make them very difficult to read. I can't really complain about this because if I'd wanted full size I could have bought one of the larger ereaders.
I also can't use the wireless downloading of books, but this is not Amazon's fault. We just have very limited wireless service here in the mountains. I was able to get the wireless to work over in a town in Kentucky, but didn't download any books (just checked the internet). Not having wireless isn't all that bad, all you do is download a book from the Amazon site to your computer and transfer it via a USB cord.
The internet browser on the Kindle is primitive. It works about like a phone browser on a non-smart phone. If a site is optimized for mobile browsers the site is easily read; if the site isn't optimized for it (or has flash) it's just not going to work very well. Basically, you should be able to read well put together blogs and newspapers.
The MP3 player is basic. It works. It can also play music while you read books. My Creative Zen is more versatile and smaller, so I use it instead.
Versus the iPad: There have no shortage of stories predicting the death of the Kindle because of the coming iPad. At this point the Apple reality distortion field is in full effect, so it's hard to tell. The one actual bit of research I've been able to find indicates that the Kindle is actually doing better than the iPad.
I wouldn't be surprised if this continues. I know that since I've started carrying mine their have been a lot of people showing interest in it and most of them are people I don't see buying an iPad (or any other tablet computer). My main hope is that the competition from multi-purpose tablets will drive ereaders down to where their pricing ought to be, perhaps $79.99 for the smaller and $124.99 for the larger unit. It'd also be nice if they finally went to color e-ink. I hope they don't try to change from single focus devices to multi-focus. If the ereader providers try to compete at that level they'll lose.
Conclusion: As something to read with, the Kindle is easily better than a paperback book. In the end, even at $259, it will pay for itself in money I save on books (assuming the current pricing scheme holds) in about 18 months, but it is really too expensive to achieve the level of market penetration it should be getting. If you can afford one buy it.
[addendum] cross posted - with some improvements at my office's blog "The Digital Office".
The Good: When you use the Kindle for what it is built for it does an amazing job. It is the perfect replacement for paperbacks. The e-ink is crystal clear and it's not another glowing screen to wear out your eyes. You can adjust the font size and I did bump it up a size because of my eyes which were never so great and which have been worn out by too much staring at glowing screens; if you have younger eyes you may bump it down a size to get more on one screen. You can hold the tablet easily in one hand and click the button to change the page with your thumb. Personally, I suggest that you don't get one of the many covers which make the Kindle look like a book and will require you to use both hands like a book. It just works perfectly as a one hand device.
Prices at Amazon are generally very reasonable. Amazon held the line at $9.99 maximum for all e-books until recently. When Apple sold consumers down the river in order to get publishers to come to its bookstore for the iPad Amazon was forced to give ground. Still, I think the highest price I saw was $14.99 and I found a number of classic books, such as Blackstone, for $.99 (I even found Moby Dick available free of charge). Outside of Amazon, other companies can provide digital books which work on the Kindle through various formats. Some companies are reasonable about this and some are insane enough to think that I'll pay the price of a hardbound book even if they haven't paid for ink or paper or shipping or the profit the brick and mortar would have taken.
All-in-all, once ereaders come down to a reasonable price (they really should be $99 or lower), there will be no reason for anyone to buy a paperback anymore except sheer stubbornness. The only reason to buy hardbound books will be to have the book on a shelf to impress people.
The Bad: The thing I'm most upset about has nothing to do with Amazon. It has to do with legal publishers. This would be a good medium for legal trial books - the ones companies put out every year for practitioners to take to court with them so that they are able to make arguments on the fly. Specifically, I checked for Criminal Offenses and Defense in Virginia, The Law of Evidence in Virginia (usually called "Friend"), Police, Crimes and Offenses and Motor Vehicle Laws of Virginia (yearly selected codes for crime and traffic), and the Annotated codes (both Lexis and West). None of these were available. Neither West nor Lexis had any useful books which could be downloaded on the Kindle. Last year, West announced that it was putting 30 of its books out for the Kindle, but there wasn't a single one of them which was really of use.
The Other: PDF's don't work well on the Kindle; it shrinks them in size and can make them very difficult to read. I can't really complain about this because if I'd wanted full size I could have bought one of the larger ereaders.
I also can't use the wireless downloading of books, but this is not Amazon's fault. We just have very limited wireless service here in the mountains. I was able to get the wireless to work over in a town in Kentucky, but didn't download any books (just checked the internet). Not having wireless isn't all that bad, all you do is download a book from the Amazon site to your computer and transfer it via a USB cord.
The internet browser on the Kindle is primitive. It works about like a phone browser on a non-smart phone. If a site is optimized for mobile browsers the site is easily read; if the site isn't optimized for it (or has flash) it's just not going to work very well. Basically, you should be able to read well put together blogs and newspapers.
The MP3 player is basic. It works. It can also play music while you read books. My Creative Zen is more versatile and smaller, so I use it instead.
Versus the iPad: There have no shortage of stories predicting the death of the Kindle because of the coming iPad. At this point the Apple reality distortion field is in full effect, so it's hard to tell. The one actual bit of research I've been able to find indicates that the Kindle is actually doing better than the iPad.
I wouldn't be surprised if this continues. I know that since I've started carrying mine their have been a lot of people showing interest in it and most of them are people I don't see buying an iPad (or any other tablet computer). My main hope is that the competition from multi-purpose tablets will drive ereaders down to where their pricing ought to be, perhaps $79.99 for the smaller and $124.99 for the larger unit. It'd also be nice if they finally went to color e-ink. I hope they don't try to change from single focus devices to multi-focus. If the ereader providers try to compete at that level they'll lose.
Conclusion: As something to read with, the Kindle is easily better than a paperback book. In the end, even at $259, it will pay for itself in money I save on books (assuming the current pricing scheme holds) in about 18 months, but it is really too expensive to achieve the level of market penetration it should be getting. If you can afford one buy it.
[addendum] cross posted - with some improvements at my office's blog "The Digital Office".
22 March 2010
Ego Busting 101
Our local court uses video records, so you can see the arguments you made. Recently, I was in a rather intense argument after which the judge agreed to do what I asked. I felt pretty good about it and 3 or 4 people told me how well I did. So, I decided to get a copy of it.
Maybe some of the rest of you are so telegenic and make arguments so perfectly that watching yourself just feeds your ego. Me? Not so much.
First of all, if there is something that is the opposite of telegenic I'm that. Short, overly round, and wearing goofy glasses - they're not going to be modeling any TV drama attorneys after me and nobody who isn't a juror or judge should be forced to look at me too long. Yeesh.
Then there was the argument. I stumbled. I stuttered. I stopped in mid-sentence. I made statements which made perfect sense to me (and the defense attorney) because I know the facts, but which had to leave the judge thinking, "Huh?" AAAaaarrrgggg!
Now, I have been told that my arguments work better when witnessed in person rather than watched on video. I hope so. Good gracious, I hope so.
.
Maybe some of the rest of you are so telegenic and make arguments so perfectly that watching yourself just feeds your ego. Me? Not so much.
First of all, if there is something that is the opposite of telegenic I'm that. Short, overly round, and wearing goofy glasses - they're not going to be modeling any TV drama attorneys after me and nobody who isn't a juror or judge should be forced to look at me too long. Yeesh.
Then there was the argument. I stumbled. I stuttered. I stopped in mid-sentence. I made statements which made perfect sense to me (and the defense attorney) because I know the facts, but which had to leave the judge thinking, "Huh?" AAAaaarrrgggg!
Now, I have been told that my arguments work better when witnessed in person rather than watched on video. I hope so. Good gracious, I hope so.
.
18 March 2010
Who are these Crummy Defense Attorneys?
A big topic around the criminal defense blawgs recently was how defendants will hire incompetent attorneys and just be tickled pink as that attorney walks them right off the plank and into the ocean. via Divorce Discourse, My Law License, Simple Justice, & Crime and Federalism.
We've all seen these guys and rather than rehash why defendants are drawn to them, I thought I'd try to break down who they are.
Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench - now he's getting a month. This guy doesn't care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don't understand how it hurt the client. He knows this will bring business and big fees.
I Believe: A True Believer, especially a young True Believer, is dangerous for her clients. She's got a Cause. It can be to stop the oppression of the downtrodden. It can be to force the rule of law to be followed in Pitcairn County. It can be to prove to the world that Judge Smith isn't competent to be a judge. She's got long term goals and she's fired up about them. The problem is that she takes her clients with her on her quest to cure the world's ills (or at least those of the judicial system). Defendants usually have fairly short term problems and she isn't doing one of them a whole lot of good when she uses him as her gateway to make a novel argument that the larceny statute is an unconstitutional violation of the 13th Amendment. The defendants see her fighting tooth and nail and hear all these wonderful arguments - just like Law & Order - and think they're getting the best representation in the world.
Used to Be: This guy had an amazing string of victories once upon a time. He built a well deserved reputation as one of the best. The problem is that that was 20-30 years ago. Nowadays, he doesn't understand electronic research, he doesn't keep up with new cases, and the prosecutors aren't all that worried about him anymore. Still, he's been the high priced, high rep lawyer for so long that people keep going in and handing him tons of money.
The Only: This guy is one of the only two lawyers who have done criminal law in Pitcairn county for the last 20 years. He's represented entire clans - grandfather, fathers, sons, grandsons & granddaughters - as each generation makes it's way into court and on to jail. Every once in a while he's looked at the books and made some arguments, but usually he's just there to ease his clients comfortably through the system. And they go to him without even thinking about it. He's one of them - as opposed to those city lawyers who come out here and get in shouting matches with Judge Smith - and he's the guy they've been seeing in the courthouse every time they go there for the last 20 years. He must know what he's doing.
Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can't negotiate with the prosecutor and officers worth a darn. Her client "didn't really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgement. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she's out in the hall talking to Mom about her son's jail sentence and she's visibly more upset about it than Mom is; in fact, you'll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.
In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy's reputation. When people can't afford Big Guy's fee or need someone NOW and Big Guy isn't available, they end up with this guy. After all, he's connected to Big Guy and therefore the defendant's going to get Big Guy's experience at this lawyer's rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant's happy because he's represented by someone out of Big Guy Law Offices (even if it's not Mr. Big himself).
MegaFirm International: The son of the COO of IBM gets a shoplifting charge. He turns to the only lawyers he knows, those of MegaFirm International, Inc., PSC, LLP - the ones who charge his corporation $750 an hour to write contracts. The next month a partner shows up in court with a hair styling alone which cost more than the combined value of the suits of all the trial lawyers in the room. He's had associates research all the shoplifting laws in the entire US for the last 20 years (at a bargain basement price of merely $250 per hour). They've briefed him and he has come to court with that one perfect case out of Wyoming. He doesn't know that if he just walked over to the prosecutor and asked the first time shoplifting would be taken under advisement for six months and dismissed after shoplifting classes and 50 hours community service. And he seems a little befuddled when Judge Smith just won't give any credit to that case out Cheyenne's District Court. Still, the COO is impressed and knows that his son has the only real lawyer in the courtroom.
--------------
Of course, these are not mutually exclusive categories. Most of these attorneys range across a number of them. While these are surely not all, they are all the categories I can think of this morning. And, none of these are based upon people I practice with now. I can, but won't, point to people in places I used to practice as models for every category above.
We've all seen these guys and rather than rehash why defendants are drawn to them, I thought I'd try to break down who they are.
Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench - now he's getting a month. This guy doesn't care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don't understand how it hurt the client. He knows this will bring business and big fees.
I Believe: A True Believer, especially a young True Believer, is dangerous for her clients. She's got a Cause. It can be to stop the oppression of the downtrodden. It can be to force the rule of law to be followed in Pitcairn County. It can be to prove to the world that Judge Smith isn't competent to be a judge. She's got long term goals and she's fired up about them. The problem is that she takes her clients with her on her quest to cure the world's ills (or at least those of the judicial system). Defendants usually have fairly short term problems and she isn't doing one of them a whole lot of good when she uses him as her gateway to make a novel argument that the larceny statute is an unconstitutional violation of the 13th Amendment. The defendants see her fighting tooth and nail and hear all these wonderful arguments - just like Law & Order - and think they're getting the best representation in the world.
Used to Be: This guy had an amazing string of victories once upon a time. He built a well deserved reputation as one of the best. The problem is that that was 20-30 years ago. Nowadays, he doesn't understand electronic research, he doesn't keep up with new cases, and the prosecutors aren't all that worried about him anymore. Still, he's been the high priced, high rep lawyer for so long that people keep going in and handing him tons of money.
The Only: This guy is one of the only two lawyers who have done criminal law in Pitcairn county for the last 20 years. He's represented entire clans - grandfather, fathers, sons, grandsons & granddaughters - as each generation makes it's way into court and on to jail. Every once in a while he's looked at the books and made some arguments, but usually he's just there to ease his clients comfortably through the system. And they go to him without even thinking about it. He's one of them - as opposed to those city lawyers who come out here and get in shouting matches with Judge Smith - and he's the guy they've been seeing in the courthouse every time they go there for the last 20 years. He must know what he's doing.
Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can't negotiate with the prosecutor and officers worth a darn. Her client "didn't really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgement. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she's out in the hall talking to Mom about her son's jail sentence and she's visibly more upset about it than Mom is; in fact, you'll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.
In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy's reputation. When people can't afford Big Guy's fee or need someone NOW and Big Guy isn't available, they end up with this guy. After all, he's connected to Big Guy and therefore the defendant's going to get Big Guy's experience at this lawyer's rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant's happy because he's represented by someone out of Big Guy Law Offices (even if it's not Mr. Big himself).
MegaFirm International: The son of the COO of IBM gets a shoplifting charge. He turns to the only lawyers he knows, those of MegaFirm International, Inc., PSC, LLP - the ones who charge his corporation $750 an hour to write contracts. The next month a partner shows up in court with a hair styling alone which cost more than the combined value of the suits of all the trial lawyers in the room. He's had associates research all the shoplifting laws in the entire US for the last 20 years (at a bargain basement price of merely $250 per hour). They've briefed him and he has come to court with that one perfect case out of Wyoming. He doesn't know that if he just walked over to the prosecutor and asked the first time shoplifting would be taken under advisement for six months and dismissed after shoplifting classes and 50 hours community service. And he seems a little befuddled when Judge Smith just won't give any credit to that case out Cheyenne's District Court. Still, the COO is impressed and knows that his son has the only real lawyer in the courtroom.
--------------
Of course, these are not mutually exclusive categories. Most of these attorneys range across a number of them. While these are surely not all, they are all the categories I can think of this morning. And, none of these are based upon people I practice with now. I can, but won't, point to people in places I used to practice as models for every category above.
16 March 2010
In the News
1) Great, the youngins are going to be huff zombies.
2) Solicit a child, get 100 years.
3) If you went to prison before 1995 you are eligible for parole, but you ain't getting it.
4) If you can't be tried because you're incompetent it doesn't get you set free.
5) I don't car how stupid the other driver is - don't do this.
2) Solicit a child, get 100 years.
3) If you went to prison before 1995 you are eligible for parole, but you ain't getting it.
4) If you can't be tried because you're incompetent it doesn't get you set free.
5) I don't car how stupid the other driver is - don't do this.
15 March 2010
In the News
1) You gotta luv local papers. Read the typical "Modern Law Enforcement in a Modern World" bit, then go down and read the comments from locals who are just going off about everything they think is wrong with law enforcement in their county.
2) Come into a Virginia house - get shot. Who needs the castle doctrine?
3) I've heard of padding a bra, but this is ridiculous.
4) Eluding arrest is not a violent crime as far the feds are concerned.
5) Good news lawyers in Virginia's Western Federal District! Soon you'll be able to tell the press what went on in that bench conference in the middle of the trial.
2) Come into a Virginia house - get shot. Who needs the castle doctrine?
3) I've heard of padding a bra, but this is ridiculous.
4) Eluding arrest is not a violent crime as far the feds are concerned.
5) Good news lawyers in Virginia's Western Federal District! Soon you'll be able to tell the press what went on in that bench conference in the middle of the trial.
R.I.P. HB1394
For those of you who don't know, HB1394 (previously addressed here) passed the House of Delegates. However, the Senate sent it straight to its Committee for Courts of Justice and passed it by indefinitely.
In case you don't speak legislativese, that means the Senate killed it.
In case you don't speak legislativese, that means the Senate killed it.
09 March 2010
RIP Virginia Appellate Defender's Office
Casualty of the budget shortfall.
There doesn't appear to be a way to link to an exact post so I point you to the 09 March 2010 post.
There doesn't appear to be a way to link to an exact post so I point you to the 09 March 2010 post.
In the News
1) Well, it's been 25+ years and kids are still bringing guns to my high school.
2) Kentucky about to approve death penalty method.
3) He shot at his mother 20 times.
2) Kentucky about to approve death penalty method.
3) He shot at his mother 20 times.
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