Don't Mess With Indian Cops

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

Translation, anyone?

Those Are Cameras in Those Black Bubbles on the Ceiling

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

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

Cited in Wikipedia

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

I Wish to Report a Burglary

The Virginia State Bar v. Free Speech

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

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

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

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

Rule 1.6 Confidentiality of Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

----------

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

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

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

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

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

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

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

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

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

The Monster Mash

Gotta love transcripts:

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

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

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

Who Prosecutes a Misdemeanor in Virginia?

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

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

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

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

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

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

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

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

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

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

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

Rape by Lie: Seduction

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

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

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

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

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

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

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

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

Rape by Lie in the United States

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

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

§ 18.2-61. Rape.

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

No rape by fraud there.

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

39-13-503. Rape.

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

. . . . .

(4) The sexual penetration is accomplished by fraud.

I also found a limited version of this in California.

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

. . . . .

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

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

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

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

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

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

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

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

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

Rape by Lie

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

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

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

Five Signs

If You Are Stolen . . .

Why Aren't I a Law Professor?

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

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

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

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

Fear the Great Electronic Menace

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

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

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

Okay, the part about an employer communicating with his attorney thru his employer's computer or

CrimLaw News From Around the Globe

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

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

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

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

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

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

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

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

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

Valuing Electronic Content that is Illegally Converted

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

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

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

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

Kentucky Pride & a Superbowl Ad

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

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

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

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

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

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

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

Tomorrow: Valuing Stolen Computer Data

Valuing a Stolen Item: The Price Tag

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

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

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

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

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

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

Tomorrow: What if there is no price tag?

__________

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

Virginia Drug Deaths by Ethnicity

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

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

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

Can You Steal Computer Programs & Data?

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

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

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

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

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

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

. . .

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

a. Tangible or intangible;

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

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

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

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

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

. . .

3. Converts the property of another;

is guilty of the crime of computer fraud.

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

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

a. Tangible or intangible;

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

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

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

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

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

When is Stealing 5 MILLION $ Not Theft?

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

Link to artsy page.

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

The Pill Plague: Deaths by the Score

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

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

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

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

Drug Deaths in Virginia 2009

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

1. Patrick County (green on map)

2. Radford City (red on map)

3. Bland (yellow on map)

4. King and Queen (light blue)

5. Tazewell (dark blue)

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

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

It's all part of the pill plague.

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

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

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

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

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

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

The Shows a Person Should Watch Before

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

1. The Practice:

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

2. Raising the Bar:

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

3. Night Court:

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

Identity

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

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

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

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

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

Kentucky is Arresting Its Kids

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

Free Legal Advice

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

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

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

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

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

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

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

Innocent Possession

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

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

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

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

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

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

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