02 May 2024

Driver's License for Foreign Citizens

Does a citizen of another country need to have a Virginia License?

Under § 46.2-308, a new resident of Virginia has a six (6) month window within which she is required to get a Virginian license.If she doesn't she can be charged with driving without a license (§ 46.2-300) and face up to twelve (12) months in jail. But, of course, not everybody who drives into Virginia intends to stay here permanently. In my part of the Commonwealth it is rather common for people from Tennessee or Kentucky to drive thru Virginia to get to the other state. People also come into Virginia for vacations or to shop or for myriad other non-permanent reasons. What happens then? Does every Kentuckian who is driving thru Wise and Scott Counties in Virginia in order to get to Kingsport, Tennessee get charged with no Virginia driver's license? 

Of course not. § 46.2-307(A) allows nonresidents to drive in Virginia:

A nonresident over the age of sixteen years and three months who has been duly licensed as a driver under a law requiring the licensing of drivers in his home . . . country and who has in his immediate possession a driver's license issued to him in his . . . country shall be permitted, without a Virginia license, to drive a motor vehicle on the highways of the Commonwealth.

Strangely, after this blanket allowance subsections B & C repeat the exception for those from another country. B states that there can be an agreement between the Commissioner and foreign countries allowing reciprocal recognition of each others' licenses for non-residents. C simply seems to be a restatement of A's requirement be "duly licensed as a driver under a law requiring the licensing of drivers in his home . . . country" except it's a little more long winded about it. 

So, nonresidents can drive around Virginia with their foreign licenses as long as they remain nonresidents. And, that's where things get a little interesting, because Virginia was kind enough to define nonresident for us in § 46.2-100 which states a  "nonresident" is defined as "every person who is not domiciled in the Commonwealth, except: . . . 

(ii) a person who becomes engaged in a gainful occupation in the Commonwealth for a period exceeding 60 days shall be a resident for the purposes of this title except for the purposes of Chapter 3 [punishment for non-commercial licensing offenses]; (iii) a person other than . . . (b) a person who is serving a full-time church service or proselyting mission of not more than 36 months and who is not gainfully employed, who has actually resided in the Commonwealth for a period of six months, whether employed or not, or who has registered a motor vehicle, listing an address in the Commonwealth in the application for registration, shall be deemed a resident for the purposes of this title, except for the purposes of the Virginia Commercial Driver's License Act.

Subsection (ii) is strange in that it makes the gainfully employed foreigner a resident at sixty days for traffic enforcement purposes BUT then immediately defangs itself by exempting the now foreign resident from enforcement. This pushes us into subsection (iii) which is poorly written. It is a set of persons excepted from being a nonresident (a person) but immediately sets out exceptions to the exception (see the gray section above). The problem is that the statute does not clearly delineate where the second exception to the exception ends. A natural first reading could lead a reader to just keep adding each subsequent clause to the last exception to the exception. However, this falls apart pretty quickly remembering that this is actually describing an exception and therefore it has to be a positive description of someone who fits within the set. With that in mind, the logical place to end the exception to the exception is at the first comma after (b) because the clause immediately following it sets out who is in the exception to the nonresident set: those who have resided in Virginia for longer than six (6) months or registered a car in Virginia. 

All of which is a long winded way of saying whether you intend to reside in Virginia or not you need to get a Virginia driver's license before six (6) months if you move into the state and don't leave.

As a practical matter, the claim that a foreigner is a nonresident would have to be an affirmative defense. There is no way in the world that an LEO on the side of the road is going to know whether someone driving in Virginia with a license from the Republic of Erehwon has been here less than six months. He's going to charge her with driving without a license and that is going to have to be hashed out in court.1



 1 Yes, I realize the same analysis could apply to those licensed from other States. It would be nice if there were a written presumption that a holder of a state license is legitimate, but I've not found it in the statutes. However, I think that most LEO's in the real world already treat out of state license holders as legitimate unless given cause to believe otherwise (it happens). Additionally, I think that most out of state license holders will have things like registration of the vehicle from the other state and/or insurance indicating residence in another state - not always, but most times.

09 March 2024

Favorite Quote of the Year (So Far)

 "Rule 1:1 does not require incantation; it requires specificity."

 Rule 1.1 of the Supreme Court of Virginia is that the Final Order of a trial is final after 21 days. And we mean final. We really mean it. For real

In Russell v. Commonwealth, DEC24, VaApp no. 0822-22-2, the trial court entered a Final Order and within 21 days it entered a stay of execution. The Court of Appeals said that's about when the sentence starts being served, not whether the sentence is final. The trial court did not state it was maintaining jurisdiction over the imposition of the sentence within 21 days so it stands. Appellant's attorney accused the Court of Appeals of requiring "magic words." The Court of Appeals took umbrage.

 What's up with "magic words" anyway? Aren't we supposed to be lawyers with slightly elevated linguistic abilities? Has everyone forgotten the word 'pedantic?' Time to up your game guys.

21 November 2023

Distinction Without a Difference

 I'm breaking down the published cases in Virginia from March thru now (I do this every year) and I ran across Tomlin v. Commonwealth. The issue in Tomlin is whether bedsores from some fairly nasty abuse of an incapacitated adult qualify under the statute under the following definition:

 "Serious bodily injury or disease" includes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life-threatening internal injuries or conditions, whether or not caused by trauma.  § 18.2-369(C) 

The proper answer here is whether the fact finder determined the condition of the bed sores to be as serious as the least of the things on the list. Disfigurement doesn't require serious harm and a fracture can be rather minor. The finder of fact at trial should make the determination and the appellate courts should, as they constantly tell us, defer to the person(s) who actually saw the evidence and heard the witnesses.

But no, the Virginia Supreme Court got suckered into an unnecessary discussion of cannons of interpretation. It even batted over .600 in its analyses, getting Noscitur a Sociis and In Pari Materia right. Mind you, the appellant threw some nice fat eephuses right over the plate. Sadly, the Supreme Court whiffed on Ejusdem Generis. Here's my breakdown of the court's reasoning:

Tomlin v. Commonwealth, JUN23, VaSC no. 220223:  (1) When a particular class of persons or things is enumerated in a statute and general words follow, the general words are to be restricted in their meaning to a sense analogous to the less general, particular words.  (2) The specific-general sequence is required, and that the rule does not apply to a general-specific sequence.
Let's play out that reasoning some. If your statute says "red, blue, green and other colors", you are stuck with things similar to the colors listed (ie: yellow, purple, magenta). If your statute says "colors including red, blue and green" then "colors" is not limited to things similar to the colors listed. It can include cars, deer, and dynamite. And, yes, I know I'm being ridiculous; it's because that is a ridiculous way to apply that doctrine of interpretation.

 While I'm sure someone out there can come up with a situation where the court's misapplication of the rule actually works, let's be honest. The reason for that particular warping of the rule is so it can be ignored when it should apply. The sad thing is that the court didn't even need to do it in this case.

14 October 2023

Frivolous Return Unit

Trying to catch up on cases I haven't read yet and ran across U.S. v. Reed which is your (sadly) fairly typical case where some yahoo files liens on everybody who has irked him. The interesting part wasn't that. The interesting part was reading that the IRS has a Frivolous Return Unit.

You have to wonder what sort of silliness these folks deal with every day. Do you think they have different sections? The biggest would have to be sovran citizens. What else do you figure they face? People who are getting instructions from space aliens or ghosts?  Equiring minds want to know.

12 September 2023

In Virginia You Can Be Punished Twice for Exactly the Same Crime

  . . . but only if the General Assembly says so.

The Virginian Courts Appellate have been rather clear on this:

When considering multiple punishments for a single transaction, the controlling factor is legislative intent. The legislature may determine the appropriate unit of prosecution and set the penalty for separate violations. Therefore, although multiple offenses may be the same, an accused may be subjected to legislatively authorized cumulative punishments. It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.  Tharrington v. Commonwealth, 58 Va.App. 704 (2011).


If the legislature expressly declares its will to inflict multiple punishments on the same conduct, the courts must respect its intent to do so—even if the two statutory offenses fail the Blockburger test. Commonwealth v. Gregg, 295 Va. 293 (2018).

To clean this up a bit, I think what the courts are saying here is that if the General Assembly evinces an intent to impose two punishments for the same crime under two different statutes it has actually shown an intent of one punishment which can be imposed for the crime, but split that one punishment between two statutes. In other words, if (1) snipe hunting is punished under 18.2-3000 (snipe hunting: 5 years) and 18.2-3050 (snipe hunting with a pocket knife: 10 years) and (2) the General Assembly expresses an intent to convict and punish under both at the same time, then (3) the cumulative punishment of the two statutes is actually the punishment which can be imposed (15 years).

So, how does the General Assembly evince this intent? Well, the appellate courts haven't defined a magic formula, but they have approved "a violation of this section constitutes a separate and distinct offense." Tharrington. Also, statutes fairly often uses "felony" instead of "offense." As best I can tell, these are the statutes which have that language:

§ 18.2-23(B) - Conspire to larceny
§ 18.2-46.2 - Doing a predicate act (crime) for a criminal street gang *
§ 18.2-46.10 - Applies this to all terrorist crimes  *
                    (Article 2: 18.2-46.4 thru 46.10) 
§ 18.2-50.3 - Entice person into a house to commit felony
§ 18.2-51.7 - Female genital mutilation *
§ 18.2-53.1 - Use a firearm in a felony
§ 18.2-57.02 - Disarming a law enforcement / correctional officer
§ 18.2-108.01 - Larceny with intent to sell
§ 18.2-152.15 - Criminal encrypting
                    (separate and distinct from predicate criminal activity)
§ 18.2-178.2 - Financial exploitation of a vulnerable adult *
§ 18.2-248.01 - Transporting drugs into Virginia
§ 18.2-308.3 - Use illegal ammunition while committing a crime
§ 18.2-308.4 - Possess Firearm and Drugs
§ 18.2-348.1 - Promoting travel for prostitution
§ 18.2-356.1 - Purchasing or selling minors *
§ 18.2-357.1 - Commercial sex trafficking
§ 18.2-376.1 - Use computer to send obscenities
                    (separate and distinct misdemeanor)
§ 18.2-461.1 - False call for emergency personnel *
§ 18.2-514 - Racketeering
§ 46.2-817 - Eluding a police stop
§ 46.2-341.19 - Use of a commercial vehicle to distribute drugs

In some of these the "separate and distinct" language stands on its own and in others the General Assembly has added and we really mean this language emphasizing the point (the statutes with *).

The interesting question is whether that's the only language that can indicate this intent. The cases don't seem to say so and there is other language in statutes which could indicate the same intent. For instance, in Virginia there are two statutes which I'll call aggravated methamphetamine distribution statutes. The first is part of the normal criminal distribution statute 18.2-248 and the other is a statute applying only to meth, 18.2-248.03. 18.2-248 has a 5-Life punishment for 10g+ pure meth or 20g+ impure meth (5 year mandatory minimum); 18.2-248.03 has a 5-40 year punishment (3 years mandatory minimum) for 28g+ of impure meth. Neither of the statutes have the "separate and distinct" language. However, the language of 18.2-248.03 begins with "Notwithstanding any other provision of law."

A general reading of that statute could be that we don't care what other statutes about illegal drugs say THIS is the statute that determines the punishment for aggravated meth distribution. This is done when there is a generalized crime, but the General Assembly wants to set out a specific punishment for a specific violation within that generalized crime. A quick overview of Virginia's statutes shows this use of "notwithstanding" to go from general to specific as a general pattern throughout the code. The problem here is that there was already a specific crime which had been created two years earlier. 18.2-248.03 was passed in 2008 while the punishment under 18.2-248 had been put in place in 2006. It clearly doesn't follow that this is a diversion from a general crime to a more specific one. 

Thus, we are left to look for guidance from the appellate courts. "Courts construe statutes so as to not render other statutory language superfluous."  Commonwealth v. Jefferson, 60 Va.App. 749 (2012).  As well, "the words chosen by the legislature in drafting a statute derive meaning from both definition and context and, therefore, we divine legislative intent by construing an enactment as a whole, together with companion statutes, if any. Legislative purpose can best be ascertained from the act itself when read in the light of other statutes relating to the same subject matter. The doctrine of pari materia teaches that statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected homogenous system, or a simple and complete statutory arrangement.  Department of Motor Vehicles v. Wallace, 29 Va.App. 228 (1999). See also Chauncey Hutter Inc. v. Vec, 50 Va. App. 590 (2007).

With all that in mind, and considering the fact that both these crimes have been on the books for 15 years without change, it seems the General Assembly means and expects them to be read in harmony - not as one superceding the other. The aggravated meth distribution punishment under 18.2-248 still exists, but "notwithstanding" its punishment the defendant is also to be punished for aggravated meth distribution under 18.2-248.03. So, assuming a defendant had 28g+ of meth his actual sentencing range - although split across two statutes - is 10 to Life+40 years with 8 years of that being a mandatory minimum sentence.

Admittedly, I've never seen this done. I'm not sure many prosecutors even think about 18.2-248.03. They're used to dealing with 18.2-248 and individually it carries a stiffer sentence so they default to it and don't try defendants under both statutes because most people, including prosecutors and judges, have a basic understanding of double jeopardy. They're okay with the punishment they're going to get and they don't have to make a nuanced argument (which is always a pain in the derriere).

19 August 2023

The Scrivener Scribbles

 So, I am writing a petition for an appeal (yes, prosecutors in Virginia still have to petition for an appeal) and I'm reading thru a rather pertinent part of my argument when I come across "Your Honor, this is one of the most obvious scribbler's errors I have ever seen."

Will the Court of Appeals accept a scrivener's error about a scrivener's error? I guess we'll see - although I guess I could argue that in the broader perspective a scrivener and a scribbler are basically doing the same thing.

01 August 2023

Contempt in a Virginia Criminal Court


 For a fairly simple concept (play stupid games win stupid prizes), contempt of court has been subject to all sorts of legislation and case law trying to define the parameters of this judicial power. What can be punished? What process is needed for punishment? How much punishment can be meted out? These questions come up more than you'd think as people find varied and imaginative ways to run afoul of the judge and court.

RULE: 6 months is the maximum punishment for contempt without a jury.

The place to begin this discussion is in the United States Supreme Court. In 1970, that court was faced with the question of whether the State of New York could convict a defendant of a crime carrying a possible year punishment without a jury. Five justices ruled that it could not. Two of those justices said every crime that carries jail time carries a constitutional right to a jury trial. The other three said that petty offenses, which they defined as those carrying a punishment of up to six months, did not require a jury.1   Baldwin v. New York, 399 U.S. 66 (1970).  From these three votes was born the now generally accepted rule that no jury is required for a crime carrying a maximum six month punishment.

A couple years prior to Baldwin the court had ruled that a judge couldn't imprison someone for two years on a contempt charge without seating a jury, but declined to set a hard line at which a jury was required.  Bloom v. State of Illinois, 391 U.S. 194 (1968).  Still, by 1974 the six month limit was an accepted fact and the court ruled that, while a number of summary contempts entered and ruled upon during the trial could have an aggregate punishment in excess of six months, if multiple contempts are tried and punished after the trial there must be a jury to impose an aggregate punishment of greater than six months.  Codispoti v. Pennsylvania, 418 U.S. 506 (1974).

Types of Contempt

Usually, if I'm asked the types of contempt I answer summary and plenary. This division concentrates on how the judge handles the contempt. Summary is punished directly by the judge without any of the trappings of due process. Plenary is tried with the defendant being given all the rights she is entitled to under the various statutes and constitutions. 

However, courts also divide contempts between direct and indirect. See Robinson v. Commonwealth, 41 Va.App. 137 (2003). This division concentrates on the activity of the contemptor. If the contemptor does something in the courtroom or in a manner that disrupts what is going on in the courtroom it is direct contempt.2  If the contemptor does something not immediately disruptive, but in defiance of the court's power to administer justice, it is indirect contempt. In theory, summary goes with direct and plenary goes with indirect. However, this is subject to modification and in Virginia the General Assembly has done so.

The Virginia Summary Contempt Statutes

 § 18.2-456. Cases in which courts and judges may punish summarily for contempt.

A. The courts and judges may issue attachments for contempt, and punish them summarily, only in the following cases:

1. Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;

2. Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness, or party going to, attending, or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court;

3. Vile, contemptuous, or insulting language addressed to or published of a judge for or in respect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding;

4. Misbehavior of an officer of the court in his official character;

5. Disobedience or resistance of an officer of the court, juror, witness, or other person to any lawful process, judgment, decree, or order of the court; and

6. Willful failure to appear before any court or judicial officer as required after having been charged with a felony offense or misdemeanor offense or released on a summons pursuant to § 19.2-73 or 19.2-74.

B. The judge shall indicate, in writing, under which subdivision in subsection A a person is being charged and punished for contempt.

C. Nothing in subdivision A 6 shall be construed to prohibit prosecution under § 19.2-128.

This is what most Virginian lawyers and judges refer to when they talk about contempt. § 18.2-457 limits punishment of "any such contempt as is mentioned in" § 18.2-456(A)(1) to 10 days and/or $250 unless a jury is impaneled to determine punishment. § 18.2-458 limits a district court judge's ability to punish any summary contempt to 10 days and/or $250 and § 18.2-459 outlines the procedure for appealing the general district court summary contempt findings.

Note that while (A)(2) thru (A)(6) are subject to summary punishment by the judge they all cover things which are indirect contempt in many - if not most - circumstances. Note also, that the judge "may" use summary judgement under this statute - not shall. The statutes do not foreclose the use of plenary contempt.

Virginian Indirect Contempt

In Robinson, the Virginia Court of Appeals confuses indirect contempt with plenary: "Indirect or constructive contempt charges, therefore, are not brought summarily, but must proceed under a more formal procedure than an immediate adjudication by the court." Id. at 146.  As discussed in the previous paragraph, this is clearly not true. However, although the language in Robinson is less clear than we might hope for, it does set out the idea that if the defendant is accused of indirect contempt and it is treated as plenary contempt (constitutional and statutory procedures observed), the judge can find the defendant guilty of common law contempt and sentence him without regard to any limitations in the summary contempt statutes.

Maximum Punishment

Theoretically, there is no maximum punishment for indirect, plenary contempt in Virginia. The appellate courts refer to "the unbridled authority of courts to punish for criminal contempt." Baugh v. Commonwealth, 14 Va.App. 368 (1992)(oft quoted thereafter).  Unbridled, for those of you who didn't grow up watching cowboy movies, means "unrestrained." In other words, there is no maximum punishment for contempt in Virginia - only procedural limits as to how a judge can get there.


Summary contempt is limited by §§ 18.2-456 thru 459. A district court judge is limited to 10 days and/or a $250 fine for all summary contempt (whether direct or indirect) while a circuit court judge is limited to that punishment only in cases of direct, summary contempt. Even then, a circuit court judge can impanel a jury and seek a higher punishment.3 

Plenary contempt is clearly available to the circuit court judge and has no maximum sentence except for the mandate from the U.S. Supreme Court that if contempt is to be greater than 6 months the contemptor is entitled to a jury to set the punishment. 

On the other hand, plenary contempt does not appear to be available to the district courts. As already established, there is no maximum punishment for contempt. Under § 16.1-123.1(1) the general district court has jurisdiction over local ordinances, misdemeanors, and traffic infractions while § 16.1-241 limits the jurisdiction of juvenile and domestic courts to those domestic crimes not rising to a felony. See  e.g. subsections I & J.  A misdemeanor is defined as a crime not "punishable with confinement in a state correctional facility." § 18.2-8 (definition set by definition of a felony).  Under § 53.1-20(B), a person "sentenced to the Department or sentenced to confinement in jail for a year or more shall be placed in the custody of the Department and received by the Director into the state corrections system."  Ipso facto, a district court judge does not have, by the enabling statutes laid out by the General Assembly, the jurisdiction to address any crime that has the potential to punish the defendant more than twelve months and, as plenary contempt carries a potential sentence greater than 12 months it lies outside the jurisdiction granted a district judge.

The only real argument I can think of for a district court to have plenary contempt powers is that since a jury is required for a contempt sentence of more than 6 months and a Virginia district court lacks the power to impanel a jury a district court has plenary contempt powers up to six months. The appellate courts' reference to contempts punished with six months or less as "petty" would seem to support this distinction. However, I find this line of reasoning non-persuasive as the potentially infinite punishment attached to plenary contempt effectively makes it a felony whether a district court can seat a jury or not. An apt analogy might be that a district court lacks the ability to convict a defendant of grand larceny even if the sentencing guidelines only call for three months punishment; it has a potential maximum sentence of twenty years therefore it goes to circuit court for a felony determination. So, I don't think district courts have plenary contempt power in Virginia.


1  Three other justices dissented and one did not participate.

2  Typically, this could be someone yelling or fighting in the hall outside the courtroom. I have seen it from further away. A judge in Pitcairn County was doing arraignments and bond hearings by video from the jail and construction at the jail was making so much noise he couldn't communicate with the defendants. He told a deputy to tell the construction people to stop; they didn't. He had the construction boss detained and brought to the courtroom to answer a possible contempt.

3  This leaves us with all sorts of interesting procedural questions. Does the defendant get an attorney? But, then it would become a plenary hearing. Does the defendant get jury selection? If so, who is striking jurors from the other side? The judge? In theory, the prosecutor has no place in summary contempt; it is entirely in the breast of the court. --- etc. et cetera &cetera . . .

06 April 2023

Case Law Presentation March '23

My highlights of the last year's criminal law cases out of Virginia (year ending 01 March 2023). The entire breakdown of the law can be found at my website under the CaseLaw Breakdown folder.

04 March 2023

OMG! A Brave New World (or At Least Judge)

I just saw something I never thought I'd see: a Court of Appeals judge in Virginia quoting New York and Oregon law as persuasive in interpreting Virginia statutes. If he'd added precedent from California it would have been per se grounds for immediate reversal by the Virginia Supreme Court.

Wallace v. Commonwealth, FEB23, VaApp no. 1040-21-1: If someone purposefully deposits a fraudulent check at an ATM she has the right to use, it's not computer fraud unless the Commonwealth proves she was acting in violation of the terms of her contract with the bank.

Judge Ortiz, IMHO your reasoning stood on its own. There was no reason to detract from it with those citations. Good luck in some of your future endeavors (the ones that don't stand in opposition to my personal biases, beliefs, and proclivities).

26 February 2023

Looking over Virginia Prosecutors Hiring : Better Get in Shape

 I was looking at CLE's and the next button over was available positions, so I meandered over to have a look. Lots of offices are hiring and it looks like several must have had some sort of mass exodus. 

Of note:

1.  Several are still starting their sales pitch at the very beginning by telling the potential applicant that they can fire him/her anytime they want to (because that always indicates a healthy office atmosphere).

2.  At least one (Halifax) is offering a signing bonus (gotta admit that would have been pretty sweet when I moved from Midlothian to Wise 17 years ago).

3. I saw job titles I'd never seen at a Commonwealth Attorney's office before: Deputy Chief of Staff (Prince William), Senior Assistant Commonwealth’s Attorney (Henrico : this title is used elsewhere, but here it is apparently higher than Attorney III, but not chief deputy), and Conviction Review Unit Attorney (Arlington County / City of Falls Church : interesting but comes with a one year employment limit).

4.  And finally, if you're going to work as a prosecutor in Carroll County you'd better be prepared for daily calisthenics and have a cdl:

Physical Requirements

This work requires the frequent exertion of up to 25 pounds of force and occasional exertion of up to 50 pounds of force; work frequently standing, walking, sitting, speaking or hearing and using hands to finger, handle or feel and occasionally requires reaching with hands and arms and repetitive motions; work has standard vision requirements; vocal communication is required for expressing or exchanging ideas by means of the spoken word; hearing is required to perceive information at normal spoken word levels; work requires preparing and analyzing written or computer data, operating motor vehicles or equipment and observing general surroundings and activities; work has no exposure to environmental conditions; work is generally in a moderately noisy location (e.g. business office, light traffic).

25 February 2023

Punting: Artis v. Commonwealth

I am breaking down last month's cases from the Courts Appellate Virginian and I trip over Artis v. Commonwealth, JAN23, VaApp no. 1407-21-1.  There are two issues in the case. The first is about abatement and Judge Dominique A. Callins handles that one with a well reasoned and if anything too thorough explanation. Then she dealt with a second issue which boiled down to "if proof of a prior conviction makes a crime aggravated (carrying a greater punishment), does the proof have to be proven in front of the jury or can it simply be introduced to the judge at sentencing?"

In the fact pattern, Judge Callins states:

At sentencing before the trial judge, the Commonwealth introduced for the first time, without objection, evidence showing that Artis had a prior conviction[]. Over objection from defense counsel, the trial judge imposed an enhanced sentence.

Okay, if you practice criminal law in Virginia you know how such a prior conviction is proven at trial. The prosecution introduces a certified copy of the conviction. This proves the conviction. A prior conviction can also come to light as part of a pre-sentence report, although that would not have occurred in this case.

The appellant claimed that the introduction of the prior conviction had to be done during the trial on guilt or innocence. Judge Callins disagrees, stating that constitutional precedent does not require that. In a lengthy footnote (no. 3: worth the read), the Judge explains that this is a General Assembly decision (I agree) and stops just short of stating openly that they ought to get off their bums and make the decision.

Then Judge Callins punts. She talks about a case precedent requiring proof, pointing out the case doesn't say when (this is when she elucidates with footnote 3). Instead of deciding the question before her, the Judge states "it is clear that the predicate conviction upon which the trial court sought to impose the enhanced punishment was neither alleged nor proven."

The "alleged" language seems to be desultory as it wasn't a topic addressed. The not proven really has no basis in the decision either, because "evidence showing that Artis had a prior conviction" doesn't tell us what the evidence was at all. After reading this opinion, I have no idea what the Court held to be insufficient evidence. I realize this case deals with a statute now eliminated by the General Assembly, but proving a prior conviction is something done in any number of charges. It's important to know what is not sufficient to carry the day in the Court of Appeals.

Overall, I must say this is the first time I've found a case really interesting from one of the new wave of judges. The legal reasoning was solid and well supported. The factual reasoning may have been as well; I just can't tell from the facts as they are laid out in the opinion. I think it may be worthwhile to keep an eye out for Judge Callins' opinions.1


1  If for no other reason than because she uses "proven" rather than the despised and ugly "proved." Heck, if she is so righteous with God that she also uses the Oxford comma I'm probably going to start pushing for her to go to the Supreme Court.

15 February 2023

"Lustful Disposition" : Allowing Unadjudicated Acts in Child Sexual Abuse Cases

A lecturer at the CLE I'm currently attending asked whether Virginia has the "lustful disposition" evidence rule allowing unadjudicated sexual acts to be introduced against a defendant charged with a child sex abuse case. Nobody in the room knew the answer so I thought I'd check.

Yes. Virginia has this rule.

The federal government and many States adopted a specific rule of evidence setting out this rule [Rule 414] starting in 1994. However, at that time Virginia did not have codified rules of evidence and it did not adopt them until 01 June 2012. When it did so it did not adopt the federal rules, but codified much of the common law rules of evidence in a manner similar to the federal rules in Part Two of the Virginia Supreme Court Rules. However, those parts of common law rules of evidence not in the new rules of evidence did not go away:

[The Rules] are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. . . . As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules has no effect on current law or practice on that topic. Rule 2:102

I point this out because when Virginia adopted its rules it did not create a Rule 414. This failure to say yea or nay requires us to go old school and look to Virginia's case law to see where things stand.

The lustful disposition rule has been well established in Virginia since at least 1923:

The authorities are in conflict upon the general question as to whether, in a prosecution for statutory rape, evidence may be admitted of intercourse between the accused and the prosecutrix subsequent to the act upon which the prosecution is based. The better doctrine, as we think, is that where, as here, the consent of the prosecutrix is immaterial, such evidence is admissible as tending to show the disposition of the defendant with respect to the particular act charged.  Stump v. Commonwealth, 137 Va. 804 (1923).

While Stump is largely used in Virginia case law for the proposition that rape can be thru force or constructive force, its precedent as to unadjudicated sexual acts with minors has remained in place:

The court specifically instructed the jury that this evidence [unadjucated sexual activity] was not to be considered for any purpose other than as it might tend to show the disposition of the defendant with respect to the particular act charged. Defendant has nothing to complain about on this point.  Waitt v. Commonwealth, 207 Va. 230 (1966).

Even later, Stump was relied upon in Marshall v. Commonwealth, 5 Va.App. 248 (1987) as supporting precedent for the introduction of an existing rape conviction for an act within the same time period of the current indictment for rape of the minor.1

In 2008, the Virginia Supreme Court again laid out this rule without specifically citing Stump:

It is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of time, admissible for the purpose of throwing light upon the relations of the parties and the incestuous disposition of the defendant toward the other party, and to corroborate the proof of the act relied upon for conviction.  Ortiz v. Commonwealth, 276 Va. 705 (2008)(grandfather having sex with granddaughter under 13 yoa).

For those of you who can't wrap your head around having a rule of evidence without a number attached, you could find your safe harbor under Rule 2:404(b):

[E]vidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.

Admittedly, I've not met many judges who favor letting anything thru under this portion of the rule. In fact, I had one tell me that the only thing he'd ever let in under this would be modus operandi proof. It is, after all, one of the biggest catch-all exceptions in the rules. However, if your judge is young enough that she can't see beyond the numbers2 this is probably the best place to hang your hat as you recite the precedent to support the common law rule. 


1  A case rendered redundant by the passage of § 18.2-67.7:1 and adoption of Rule 2:413 in accordance with the law [both in 2014].

2  We old farts all learned the rules of evidence under the common law. Thus, we neither know all the numbers nor particularly care about them.

13 November 2022

$25,000? Where'd that come from?

I'm reading an opinion in which the Virginia Supreme Court granted a Writ of Actual Innocence in a child molestation case. One of the victims's recantations includes this stastement:

Finally, A.H. said that he discovered that Elaine [victim's mother] had received $25,000 from the prosecutor’s son.


The implication is obvious, but it leads me to two questions. (1) Where are they paying prosecutors enough money that they can clandestinely funnel money to random cases? Are they hiring? This case was in the mid-nineties and (sadly) that $25,000 would be the equivilent of $50,000+ today. I couldn't afford that and I suspect my boss couldn't either. I doubt we could scare up that kind of money if we hit up every attorney in the office.

(2) Why? I like to win cases as much as the next guy, but there's no way I would trust that sort of thing to remain a secret and my career is worth more than negative $50,000.

11 October 2022

Motion for 19.2-271.6 to be Limited to Sentencing

Admittedly, I'd rework this some - it was a bit of a rush job. I would at least add a paragraph or two about the rule of statutory interpretation that statutes passed by legislatures are to be read as congruent with the common law unless they are repugnant to each other or the new law specifically negates the old. Without putting too much into research right now I'd tell you to start with Blackstone.  





John Smith

Case no. F23-001

Motion in Limine
Mental Defect Evidence
Not Offered to Prove Insanity


COMES NOW THE COMMONWEALTH and moves this Honorable Court to limit the introduction of evidence pursuant to § 19.2-271.6 to the sentencing phase of the trial.

In support of this motion, the Commonwealth states as follows:

Statutory Requirements:

§ 19.2-271.6(B): In any criminal case, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, [1] is relevant, [2] is not evidence concerning an ultimate issue of fact, and [3] shall be admitted if such evidence (i) tends to show the defendant did not have the intent required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence.”


By passing § 19.2-271.6, the Virginia General Assembly made proof of mental defect short of insanity relevant. However, it did not explicitly state at what point in the trial proof of mental defect would be admissible. By implication the General Assembly intends this to be a sentencing issue.

The General Assembly specifically included language stating that evidence of mental defect “is not evidence concerning the ultimate issue of fact.” This language means that the General Assembly’s determination that mental defect evidence short of insanity is “relevant” is either an invitation to nullification by the finder of fact or an indication that this statute is a sentencing statute to be applied during the sentencing hearing.

When a “jury could make no legitimate use of [the offered evidence] while deliberating on appellant's guilt or innocence, the exclusion of argument which could serve only to encourage inappropriate use of this information did not constitute an abuse of discretion” Walls v. Commonwealth, 38 Va. App. 273 (2002). “The possibility of nullification can never be legally cognizable prejudice because Virginia law does not permit juries to engage in the nullification.” Blowe v. Commonwealth, 72 Va.App. 457 (2020).

Like all government officials, the members of the General Assembly are entitled to “a presumption that public officials have acted correctly”,  Hladys v. Commonwealth, 235 Va. 145 (1988), and to “a presumption of regularity in the conduct of government business.” Cartwright v. Commonwealth Transp. Com'R, 270 Va. 58 (2005).

As the General Assembly has not passed a statute overturning the long established illegality of jury nullification, we must presume that as public officials our Senators and Delegates have acted correctly and in concordance with the established law. Thus, § 19.2-271.6 cannot be a call for nullification. Therefore, the General Assembly has shown a clear intent that any evidence of mental defect offered under this statute is a sentencing issue that cannot be presented during the guilt phase of the trial.

WHEREFORE, the Commonwealth moves that all evidence introduced under § 19.2-271.6 be limited to the sentencing hearing of the trial.

                            I ask for this,

                            Ken Lammers Jr,
                            Assistant Commonwealth Attorney


I certify that a copy of this motion was given by hand to Jane Doe, counsel for the defendant on 12 December 2042.

                            Ken Lammers Jr,
                            Assistant Commonwealth Attorney

How to Screw Up a Statute: Va. 19.2-271.6

Every so often a law comes along that is so poorly written that it can't even be laughed off. Still, you know what they call a mistake made by a legislature? They call it a law. Va. Code sec. 19.2-271.6 is a law allowing evidence of mental defect not rising to insanity to be used at trial.  Here is the meat of the statute:

B. In any criminal case, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, is relevant, is not evidence concerning an ultimate issue of fact, and shall be admitted if such evidence (i) tends to show the defendant did not have the intent required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense and that the condition satisfies the diagnostic criteria for (i) a mental illness, (ii) a developmental disability or intellectual disability, or (iii) autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.

On its face, the statute appears to be self-contradictory. It both states that the mental evidence offered is not evidence concerning an ultimate issue of fact and that it must tend to show the defendant didn't intend to do the crime. Intent, of course, is an element of most crimes. About the only way you can logically resolve the conflicting language is to limit the introduction of this evidence to the sentencing phase of a trial (or assume the General Assembly was trying to encourage illegal jury nullification). 

If it is part of the sentencing hearing then the lessened intent makes sense even if it did not address an ultimate issue of fact. For example, although an 8 year old may know the difference between right and wrong we do not hold her to the same level of culpability as we do a 27 year old. She intended her act, but her lack of maturity means that we take into consideration a lack of understanding of consequence attached to the intent. The same analysis can be done for those claiming a mental defect and can be a consideration during sentencing.

How did we get here?

Well, as best I can suss out by reading the language, this statute appears to be a Frankenstienish mashing of a Guilty But Mentally Ill (GBMI) statute with the Kansas' Not Guilty By Reason of Insanity (NGRI) law.

Guilty But Mentally Ill statutes exist in at least 12 States and were created as a reaction to John Hinckley being found NGRI after he shot President Reagan because he was obssessed with Taxi Driver and Jodie Foster. They vary widely in wording but generally follow a theme as follows:

1. GBMI is a lesser included of NGRI pled at the same time.

2. The jury is given the option of Not Guilty, NGRI, GBMI, and Guilty.

3.  If the defendant is found GBMI she receives a normal sentence except mental treatment is ordered during the incarceration.

Notably, under subsection F of the Virginia statute the General Assembly disassociated it from the Virginia NGRI statute. Additonally, it neither offered GBMI as a possible verdict nor set any conditions for such a sentencing. All it did was take the kind of evidence relevant to a GMBI finding and state it was relevant without stating what it was to be used for.

And then it threw in the Kansas standard for NGRI. I'm not an expert on Kansas law, but after Kahler v. Kansas was decided my notes stated:

Kahler v. Kansas, MAR20, USSC no. 18-6135: (1) A State does not have to use the ability to know the difference between right and wrong in an action [the crime] as its insanity standard. (2) Kansas’ standard of whether the defendant was capable of forming the intent needed for the crime is constitutional.

 For those of you who want to discuss this using erudite terminology, discussion of this sometimes describes it as the mens rea approach to insanity (as apposed to the moral capacity approach to insanity which we usually shortcut as the M'Naghten test). In any event, for some reason someone thought that including a mens rea approach to the introduction of mental defect would be a good idea without including instructions as to how to use it.


(1) Currently, the only way this statute makes sense is as a sentencing statute requiring mental defect evidence to be introduced as it could have affected intent.

(2) Split the statute.

(a) Create a mens rea insanity statute:

19.2-169.5.01 - A person whose mental state is such that he is unable to form the intent to do the criminal act he is accused of shall be found not guilty by reason of insanity and have his case disposed of in the manner set forth in chapter 11.1 of this title.

(b) Change 19.2271.6 into a GBMI statute:

B. In any criminal case where the defendant has asserted he is not guilty by reason of insanity, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, is relevant even should it fall short of admissibility for an assertion of insanity, and shall be admitted if such evidence (i) tends to show the defendant had a mental condition which affected his choice to perform the criminal act and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense through expert testimony.

All evidence under this statute shall be subject to and disclosed as part of the the defendant's notice requirements for a claim of insanity at time of the offense.

 . . . 

H.  If a defendant is found guilty but mentally ill he shall be sentenced in accord with the sentencing limitations imposed by statute after due consideration of the discretionary sentencing guidelines. While he is incarcerated the defendant shall receive mental counseling and care until such time as an order from the sentencing court removes this requirement based upon medical testimony.


Next time, I'll include my motion invoving the statute as it is currently written.

13 May 2022

The Actual Power of the Bar: Part Five



1. Powers the Bar Claims   2. Actual Powers: The Primary Enabling Statute    

3. Actual Powers: Article One  4. Actual Powers: Article Two (A)             

5. Actual Powers: Article Two (B)  6. Actual Powers: Articles Three thru Five 

7: Actual Powers: Article Six

Now we're down to Article 7 under Chapter 39 of Title 54.1; in other words, it's the last article under the chapter governing lawyers as a profession. This one governs the solicitation of clients. Anyone who has turned on a TV in the last twenty or thirty years has to realize that the various Bars have lost thier fights to keep lawyers from soliciting clients thru advertisements. That doesn't mean the laws against solicitation through a salesman have gone away, although all we're going to do today is look to see what powers the Bar is granted under them.

Surprisingly, it's not much. In fact, most of this article is handled through the criminal law and there's only one reference to the Bar in the entire article:

§ 54.1-3939 gives the Bar, by inference, the ability to approve legal aid plans and lawyer referral plans.

11 May 2022

The Actual Powers of the Bar: Part Four


1. Powers the Bar Claims   2. Actual Powers: The Primary Enabling Statute    

3. Actual Powers: Article One  4. Actual Powers: Article Two (A)             

5. Actual Powers: Article Two (B)  6. Actual Powers: Articles Three thru Five 

Article Six is the part of this Chapter which lays out disciplinary procedures for attorneys in Virginia which fail to follow the Supreme Court's ethics rules. 

§ 54.1-3935(A) creates by reference hearings before the Bar Disciplinary Committee. It also creates by reference a district committee and hearings before it. It allows either an attorney or the Bar to bypass either of these hearings and present the case to a three judge circuit court. It cedes the power to determine how this bypass will work to the Supreme Court's rules. Thereafter, it requires the Bar to file a complaint in the appropriate jurisdiction.

[Thus, by implication the Bar is allowed to have some sort of proceedings, but the lawyer can escape them.]


§ 54.1-3935(B) requires Bar Counsel to prosecute the case.

§ 54.1-3936(A) allows Bar Counsel to ex parte petition a circuit court to cause a lawyer or firm to produce evidence if she has "reasonable belief" the lawyer is doing something  (1)(a) unlawful,  (b) or violating the ethics rules that will  (2) cause someone to lose property.

["Reasonable belief" has been read by Virginia courts to actually fall under the reasonable articulable suspicion standard.  See Bagley v. Commonwealth, 73 VaApp 1, 13 (2021)("if a police officer possesses a reasonable belief based on specific and articulable facts that reasonably warrant..."]


§ 54.1-3936(B) allows Bar Counsel to petition a circuit court if she has "reasonable cause" the lawyer is doing something  (1)(a) unlawful,  (b) or violating the ethics rules that will  (2) cause someone to lose property.  The Bar Counsel's petition can seek to:

(3) Get an injunction to keep an attorney or firm from withdrawing money from its bank and dispose of any property owned or controlled by the attorney or firm.

(4) Get a receiver appointed to take control of the attorney's funds and property of the lawyer's (or firm's) practice.

["Reasonable cause" would seem to fit naturally under probable cause.]

§ 54.1-3937(A) - Allows, by inference, Bar Counsel and district committees the power to file compliants to a circuit court against legal firms that are violating ethics rules or laws pertaining to law practice entities.

§ 54.1-3938.1 creates by reference a chair and vice-chair of the Virginia State Bar Disciplinary Board. By inference, it allows Bar Counsel to apply for a subpoena to gather evidence for another State's discipline or disability proceedings. It further gives the chair and vice chair the power to issue subpoenas to require testimony and document production for the foreign Bar.


That is it for the statutes describing the Bar's role in suspensions/revocations of attorney's license to practice law. It is disturbingly incomplete.

Next time we'll look at the last set of statutes having to do with lawyers: Article 7: Solicitation of Professional Employment. I won't cover how that's mostly been rendered moot by the 1st Amendment and the US Supreme Court; I'll just be looking at the statutes to see what powers have been assigned to the Bar in this area.

18 April 2022

The Actual Powers of the Bar: Part Three


1. Powers the Bar Claims   2. Actual Powers: The Primary Enabling Statute    

3. Actual Powers: Article One  4. Actual Powers: Article Two (A)             

5. Actual Powers: Article Two (B)


Articles Three thru Five aren't really about the Bar, so I'll just address those sections which enable the Bar in some way.

§ 54.1-3921 allows one member of the Bar to serve both as secretary and treasurer of the Election Board.

[It is not required and at the behest of the Board, not the Bar.]

And that's it. Next time we delve into Article Six: Revocation or Suspension of Licenses; Disbarment Proceedings.

17 April 2022

The Actual Powers of the Bar: Part Two (B)


1. Powers the Bar Claims   2. Actual Powers: The Primary Enabling Statute    

3. Actual Powers: Article One  4. Actual Powers: Article Two (A)             

We left off at § 54.1-3913.1. So let's move on to the statues which follow.

§ 54.1-3914 creates by reference an Executive Director of the Virginia State Bar. The ED is tasked with notifying, by certified or registered mail, any lawyer who hasn't paid dues for two years that she hasn't paid. By implication the ED will keep records of non-payment and addresses of attorneys. If payment is not made within six months the ED is required to remove the attorney from the list of Virginia attorneys and tells the Supreme Court. If the attorney pays her dues and a $100 fine the ED is required to put her back on the list of Virginia attorneys and tell the Supreme Court. By implication the ED will keep a list of all licensed attorneys in Virginia.

[Off Point Note: Interestingly, there doesn't seem to be a time limit for reinstatement or an ability for the ED to refuse it. So, if you let your license lapse 15 years back . . . ]


§ 54.1-3915 mandates that the Courts remain in control of attorney discipline. Possibly creates by inference non-judicial discipline when it states that an attorney who demands trial by court will get it. 


§ 54.1-3915.1 [repealed] This was the statute that stated an attorneys constitutional right to choose non-association was greater than the Bar's right to force her to give it money to be spent on legal aid. 

[While I sympathize with the sentiment behind the former statute, the constitutional analysis that says a mandated association (the Bar) which attorneys are already forced to pay taxes in support of can't snatch further funds for one of its mandated duties seems a stretch - even if the analysis is correct, it's something courts are not going to follow through on.]


§ 54.1-3916(A) creates by reference the Legal Service Corporation of Virginia and gives it one power: to receive money from the interest that attorney trust accounts accrue.

[Effectively, this is a tax on your client for hiring an attorney.]

This statute also specifically gives the Bar the power to make rules and regulations for legal aid societies with the specific mission of providing representation to those who cannot afford it.

§ 54.1-3916(B) specifically gives the Bar the power to enforce its rules for legal aid or to farm out enforcement to the Attorney General.

§ 54.1-3916(C) by inference gives the Bar the power to enjoin any organization giving out free legal aid without following the rules it promulgated pursuant to (A). By weaker, possible inference, combined with (B), it gives the Bar the power to prosecute a class 1 misdemeanor if any organization is giving out free legal aid with following the rules it promulgated pursuant to (A).


§ 54.1-3917  allows the Bar to administer and participate in a "master retirement program" for all attorneys their families, and employees. Creates by reference the State Bar Fund which is to pay for explaining the Master retirement program to members of the Bar.

[Huh? Never heard of this and couldn't find any reference to it anywhere. As far as I can tell, the Bar may be authorized to do this, but it isn't.]

§ 54.1-3917.1 allows the Bar to either (a) endorse certain insurance coverage or (b) to hold insurance policies for Bar members, their families, and employees.

[I seem to remember the Bar recommending certain companies for malpractice, but nothing further.]

§ 54.1-3918 requires the Bar to give over a list of all members to all Virginia legal organizations which do CLE's upon request.

And, that finishes off Article Two. Articles Three, Four, and Five don't look like they'll have much about the Bar. Then comes Article Six which is the disciplinary article. That may clear up a lot of what's missing under this article. We'll see once we get there.

11 April 2022

Confusing Circular and Definitive

 Over at PrawfsBlawg, Gerard Magliocca isn't allowing comment on his dubious claim that  "plain meaning arguments are largely circular." This is a basic argument which is thrown at every statute which doesn't have enough ambiguity to open it to interpretation from outside sources. It's also superficial and flawed.

Circular Reasoning: When you see an explanation of circular reasoning you usually see something like this:

 The characteristic most pointed out in circular reasoning is that both statements can be perfectly true, but not actually require the other. It's accurate as far as it goes, but it doesn't really explain the problem correctly.
What you actually have in circular reasoning are two sets of possibilities which overlap (sometimes one is a subset of the other). A more accurate depiction would be: 

There are many other reasons that we know Elvis is dead other than no one seeing him today. There are many other reasons you might not see Elvis other than him being dead (after all, there are indications he fought off a mummy in an East Texas retirement home). The sets do overlap and you can make both statements honestly, but the entirety of each set is larger than the assumption in the argument.

While it could get more nuanced, this is a good basic understanding of why the circular argument is problematic.


Definitive: What Professor Magliocca doesn't like is that his learned, well researched, dare we say erudite argument is running into a stone wall. Either the other party is stating there is a plain meaning or the judge is finding so. The very first test is the plain meaning test. If the statute passes that one then it is immune from collateral attacks. In other words, the statute itself is definitive.

Arguing something is definitive is not making a circular argument. It is stating that the meaning is settled. Collateral attempts to get around the actual meaning are entirely irrelevant. When someone demands the irrelevant be considered in a settled matter, it is not circular to point out that it is settled. It is pointing out an a priori condition which precludes consideration of further, irrelevant evidence. There are not two or three differing sets that overlap making a circular argument. The model for the professor's situation looks like this:

Ignoring the wording used to label the circle, the black circle speaks for itself. It is a black circle. It is definitive. The other circles do not intersect in any way with it and they do not change the nature of the circle. Telling someone this truth does not constitute a circular argument. It is pointing out a definitive point which cannot be changed thus making the other three circles incidental at best.


Contrary to what the professor states, a plain meaning does not require that both parties agree on the meaning for existence. It requires that there be a solid established understanding of the terms in the statute/contract. It is quite possible for philosophical differences to color arguments. In other words, if one were to believe that meanings can constantly be reinterpreted and there is no such thing as a definitive statute, then one would always say that the outside considerations should be allowed and even relied heavily upon. Thus, Professor Plum's article pointing out that black is the lack of any color, the fact that the artist meant it to be navy blue, and the fact that all the other circles are in the rainbow could be applied to find the circle is meant to be blue and therefore is. When it's necessary for your case it's amazing what you can come to truly believe.

Meanwhile, everyone else in the world is looking at the circle and saying it's a black circle on its face and needs no further interpretation. And they're right.

The actual battle in most statutes is whether there is ambiguity such that interpretation of the language is needed. If it is the party arguing for ambiguity gets to have its secondary sources considered. The reality here is that we've all seen courts rule things were plain on there face when they weren't and vice-versa. It's unfortunate, but true. I know that I actually included a sentence diagram in an appellate court petition once to show the court how its interpretation was badly out of kilter with the plain language of a statute. My brave foray back into 7th grade English did me no good. The unpublished rejection I got seemed to be confused about what the diagram was. I guess I can take solace in the knowledge that my 7th grade English teacher was better than that of whoever the appellate judge's intern was. Reality is always going to be that statutory interpretation is an inexact science, but that doesn't make a definitive statute ambiguous or the defense of it circular.

So You Want To Be A Virginia Prosecutor (The Ads)

Whether you're a newly minted attorney or somebody who's been a round a bit, if you want to be a prosecutor (or get a better prosecutor job) one of the best places to start looking is the Commonwealth's Attorneys Services Council's Employment board. [link here] Everybody from population 5,000 Pitcairn County to the metropolis of Erehwon City with 500,000 people puts their open positions on this site. It is, however, a place where you need to know what you're looking at, so let's go through some of the things to look for.

Location: Self Explanatory [unless you mix up Richmond City and Richmond County

Job Title: With some variations, you will see Assistant Commonwealth's Attorney I, II, or III and sometimes part time or hourly positions. Attorney I is your basic starting position prosecutor. Attorney II is expected to be more advanced/capable. Attorney III is more highly experienced and capable - often filling an administrative position of some sort. No matter what other titles are put up (ie Domestic Violence Prosecutor) at core they all fall under the I, II, III system. Part time / hourly prosecutors are usually positions a locality is funding for use by the Commonwealth Attorney in traffic or misdemeanor court.

Salary / Salary Range: This is where the games start. Counties which can't match the salaries from bigger cities will note the fact that they give benefits. Everybody gives medical benefits and, if you last that long, retirement benefits. Don't get distracted by that. On the other hand, if you take a job in a more rural community keep in mind the fact that you may not need as much money. I've been paid less for years where I'm at and I rent a house on a river surrounded by beautiful land and wildlife while being no more than 15 minutes from a medium size city across the Tennessee line. If I'd stayed in the Richmond area I'd be renting an apartment surrounded by other apartments and parking lots. Money is important, but it isn't everything. [Now that I've finished my ad for the wonders of taking a job in Wise County, let's get back to our regularly scheduled program already in progress]

You will often see some variation on $56,000 - 65,000, depending on experience and qualifications. Read that as $56,000. Again, read that as $56,000. No matter what anybody tells you, especially the people trying to fill their slot, read that as $56,000. Any amount above that assumes you are impressive enough to get the Comp Board [a mysterious, impenetrable agency in Richmond which determines base salaries] or the county to give you above all others extra money. You may be the one rose that blooms in that desert, but the dirt looks awful dry from here. It was when I first got my job [not a penny of extra money for six prior years experience; not that I'm a bitter, unforgiving person who has sworn eternal vengeance or anything; nope; not me; I promise]. If they don't list any salary assume the minimum comp board salary. Keep in mind, those big salary offers you see in bigger offices often come after you've had a job for a few years at a place with lower salaries [if you don't decide to stay at the really cool job with great people at the place that pays less].

 Start Date / Closing Date: These are pretty self explanatory. Make sure you look at the start date because sometimes there is a delay. If Jane is kind enough to tell her boss that she's leaving in six months to join the Marines the boss may order a mental evaluation, but he probably isn't going to kick her out the door immediately. I'm not sure why there is a closing date listed. Usually that's "until filled."

Description of Job /Special Requirements: These are basically one section describing the job and this is where you really need to start paying attention. Some places keep this short and sweet: "Prosecuting attorney with responsibilities for felony and misdemeanor offenses in General District and Circuit Court." Unless there is  something significantly different about the job, I think this is the most respectable approach. The hiring office is neither trying to baffle you with BS nor is it trying to put out sheet anchors before you are even hired. It gives you an idea in which court you will work and what you'll be doing. Do you need much more?

Apparently many offices think you do. Most of this will consist of elaborations on the basic duties of the job:

The attorney holding this position will be expected to prepare and prosecute felony and misdemeanor cases in district and circuit courts, conduct any research and writing needs to prepare prosecutions, compose appellate briefs, advise local law enforcement agencies and work closely with Victim/Witness advocates. Due to the high caseload, the attorney must be able to organize and work efficiently. Additionally, the attorney must be decisive and able to exercise discretion.

That is a rather tight version of the usual boilerplate describing the job of a prosecutor. As far as it goes, it's fine. In fact, it's probably better than most [I have to say this otherwise the very competent lady in my office who wrote it may thump me - Hi Jessica ;-)]. However, in a number of postings the boilerplate just gets out of control. I mean, for goodness sake, some of them are so long that they have labeled sub-sections: Essential Duties, Our Locality, Physical Requirements, etc. Generally they all boil down to "You will be a prosecutor in our county/city." Some seem to also use this section to show how hip they are to new prosecution trends. "We employ vertical prosecutions in all courts" is a prosecution fad that popped up a few years back describing the practice of a single lawyer handling a case from charging in district court thru sentencing in circuit court. It wasn't really something new; most serious cases have gotten handled this way in most places since the beginning of time. However, it got a fancy name and suddenly all sorts of offices started pledging their allegiance to "vertical prosecution." You'll see it thrown in any number of postings and it probably means different things at different offices.

Things to Be Cautious About:

A disturbing thing which should make you cautious is when a posting starts the description of the job it's trying to sell you on by telling you the boss can fire you. I don't know who first started putting "This is an at-will position which serves at the pleasure of the Commonwealth’s Attorney" as THE VERY FIRST LINE in their job description. All I know is that the first time I saw it it was jarring. It's like the office is setting you up to fire you before you've even shown any interest in the job. I'd tell you that this is a giant red flag except for the fact that I'm fairly certain it's now been picked up as boilerplate in various jurisdictions (everybody plagiarizes everybody else's descriptions).1 

Another thing that raises caution flags for me is if the ad reads like an employee's manual with a long and very, very specific list of duties. If it feels like they are writing the list more for their benefit than to attract you [We told you before you were hired you'd have to care for the office plants. The hydrangea is dead. You're out of here.] you might want to be cautious.

If you're looking at the ads for a while - not that any of us long practicing types ever look around to see if the grass is greener elsewhere - and you see an office is constantly hiring large numbers of attorneys or constantly hiring supervisory attorneys (Attorney III's) you should ask around to see why. Be aware that larger jurisdictions are always hiring someone and a smaller jurisdiction may have trouble getting someone to move out to a place like Pitcarin County. It's when you see a long term repetitive pattern that you should check it out. If Pitcairn County is filling its sole assistant position every six months you want to know why. If Erehwon City is constantly down 10 or so assistants or constantly hiring new supervisors, you want to know why. Ask someone from outside the office if you can.

Things to Notice

Longer descriptions are not always bad. Look for ones that describe unique(ish) positions like supervisor over general district court or member of our economics crime section. You should particularly pay attention to any clarification of Attorney II & III duties because these can vary significantly from location to location. The single Attorney II in Pitcairn County could be the Chief Deputy while Erehwon City may have four Attorney III's each supervising a different part of the office. In particular, an Attorney III should always have some explanation of the duties attached.

Experience desired/required: Treat these as advisory. Often enough they are unrealistic. An office trying to find someone with 10 years prosecuting experience can be over shooting by just a wee bit. However, you should not ignore this completely. If they are asking for 10 years and you have 6 you're probably in range; if you have 0 you're almost assuredly wasting your time and theirs. If you are a new(ish) attorney, don't be scared away by 2 or 3 years experience wanted. Some places mean it, but many are operating on a hope and a prayer and they'll be happy to talk to you - or at least they will after the position has been open for a while.

Interesting Quirks: If they are going to put in bunches and bunches of words look for things which catch your attention. Recently, I saw a jurisdiction specifically looking for someone who spoke Arabic. This caught my eye because once upon a time I studied and used Arabic quite a bit (haven't had anybody to talk to in twenty years). Every so often you see something unique like this. If you qualify it could prove useful.

Contact / Title: This is not really a make or break thing, but it does give you an idea of some of the dynamics of the office. Is the Big Boss the contact? If not, is the contact another attorney or has at least the initial stage of the hiring process been put on a staff member? None of these things are bad; they just give you an idea. Personally, the only thing here that makes me leery is when a Commonwealth has his initial application process run through the County/City. They aren't part of the County/City government and this always leaves me wondering if the office might be a little too much under the thumb of the locality. This is almost assuredly a ridiculous concern. Still it's mine and I will cling stubbornly to my irrational preconceptions until someone actually proves to me that the lizard people aren't running the world from their underground civilization in Antarctica.

Good Hunting folks. I hope my ramblings prove somewhat useful in your quest.


1  Look, I get where this could come from. You'd still be better off addressing it with paperwork once you've got the person hooked on your office. I know I had a boss once who made us sign a sheet acknowledging the fact we were at will employees every year. Legally, it made no difference - I was always and will always be an employee serving at the will of my constitutional officer whether I signed that paper or not. Still, it was a little painful each time I signed it. I'm not sure I'd have come on board if the pitch had been "Hey, I can fire you any time I want. Want a job?" Yeesh.