23 January 2022

Virginia Prosecutors' Ability to Appeal: The Last Antecedent Doctrine

The ability of prosecutors to appeal in Virginia is limited to interlocutory appeals under an enabling statute. Va. Code § 19.2-398. It begins by allowing appeals when a case is dismissed on speedy trial grounds or double jeopardy [subsection A(1)] and further down in the statute it allows the prosecutor to appeal decisions about bond [B], sentences when the judge doesn't follow mandatory requirements [C], and dismissals because a judge has found a statute unconstitutional [E]. All of that is pretty straight forward; the play in the statute is subsection A(2).

Subsection A(2) should simply state "If a trial judge prohibits an item of evidence prior to trial the Commonwealth shall have a right to appeal." Unfortunately, it doesn't. Instead, our General Assembly has saddled us with

An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.

Clever defense attorneys will try to work around the edges here. Most often it comes in the form of a claim that the evidence should be suppressed for violation of due process under the 5th and/or 14th Amendments. Another argument seen on appellate briefs is that all appeals by the prosecutor under this section must fulfill the "prohibiting illegal searches and seizures and protecting rights against self incrimination" portion of the statute. This is fairly self-evidently wrong, but for those of you who can't figure out why, I thought I'd lay out the doctrine and precedents.


Example Scenario:  

A domestic victim testified in a preliminary hearing against the man who beat her and put her in the hospital [malicious wounding 5-20 years]. The defendant was present and the defense attorney fully cross examined the victim. Before trial, the victim sends a letter to the court telling the judge she is moving to Idaho and she's not coming back to testify at trial because she's scared about threats from the defendant's family. Despite the copious amount of case law stating her prelim testimony can be introduced at trial, the defense moves for its suppression and the trial judge grants the suppression on 6th Amendment "right to confront" grounds. The prosecutor appeals to the Virginia Court of Appeals and the defendant's reply brief only argues one point. He states that the prosecution is barred from having this appeal because it has nothing to do with "prohibiting illegal searches and seizures and protecting rights against self incrimination."


The Applicable Rule:

The Last Antecedent Doctrine / Rule of the Last Antecedent - "[A] limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26 (2003). This doctrine has been followed since at least 1959 by the U.S. Supreme Court, Federal Trade Commission v. Mandel Brothers, Inc, 359 U.S. 385 (1959), and the Virginia Supreme Court applied it specifically to statutes pertaining to criminal law in 2004. Alger v. Commonwealth, 267 Va. 255 (2004). As recently as 2017 it has been applied to a criminal statute by the Virginia Court of Appeals, which stated "[t]he rule of the last antecedent is the preferred procedure for clarifying whether modifying language is intended to modify all preceding antecedents or only the final one." Coffman v. Commonwealth, 67 Va. App. 163, 168 (2017).


Applying the Rule:

One of the keys in the use of this rule is locating the disjunctive conjunction (although it seems like it should work the same for inclusive conjunctions). Under precedent and basic grammar rules, “or” is a disjunctive conjunction expressing alternatives. See Merriam-Webster Disjunctive (1)(b) (https://www.merriam-webster.com/dictionary/disjunctive). In the Virginia Supreme Court the last antecedent doctrine was applied in Alger when “or” separated “firearm or stun weapon.” It determined that the language to the right of the “or” was the last antecedent of a modifying phrase which followed allowing possession in a residence. Thus, it determined that a stun weapon could be possessed at a residence by a felon, but not a firearm. Similarly, the U.S. Supreme Court in Mandel Brothers determined that in a list of “a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs” the last antecedent was to the right of the “or” and therefore “who is engaged in dealing commercially in fur products or furs” applied solely to the phrase “any other person.”

There are, of course, two "or"s in the pertinent language of the subsection. One separates the federal 4th, 5th, and 8th Amendments from Article I of the Virginia constitution. One could argue this is the pertinent "or", but the far better fit is the second "or" which separates sections 8 [Rights of the Criminally Charged] & 10 [Banning General Search Warrants] of Virginia's Article I from section 11 [Due Process]. The primary reason the second "or" is the one which should be used is because it is the actual last division setting the last antecedent to its right. Beyond that, "prohibiting illegal searches and seizures and protecting rights against self incrimination" has more application in a due process zone because when in a probation violation hearing the rights of the accused are found under due process protections. Thus, if a judge were to exclude some evidence before a probation violation hearing after finding an unconstitutional search or interrogation that exclusion could be appealed.

Of the two arguments, the primary one is the strongest and should carry the day if the appellate court is in a logical mood. One would have to engage in a fair level of sophistry to bypass the last antecedent rule. The second argument bolsters the primary, but it is far from bulletproof. It's biggest difficulty is that because there is no inclusion of due process in the list of federal amendments which can be appealed the inclusion of section 11, however it is limited, is effectively moot. Attorneys are trained to raise issues under the federal constitution because Virginia's appellate courts have been very strict in their insistence that rights under the Virginia constitution are merely co-extensive with the federal rights. Additionally, a competent defense attorney wouldn't base his argument on section 11 because that would subject a successful motion to suppress to appeal. So, while the modifying information clearly attaches to the last antecedent, section 11, the section 11 language itself is meaningless. This could be used as an excuse to ignore the plain reading and the rule.



However you apply the last antecedent doctrine, the federal amendments which a prosecutor is allowed to appeal are not modified by the "prohibiting illegal searches and seizures and protecting rights against self incrimination" language. There are two "or"s between that part of the statute and the modifying language. The modifying language solely applies to Article I section 11. Even if an appellate court were to widen the application of the modifying language it shouldn't be able to get past the applying it only to Article I. Or at least it shouldn't be able to without tying itself into a knot of illogical sophistry. They do this at times (My favorite over the last few years was the 4th Circuit writing 11 pages of smoke and mirrors trying to convince everyone that there isn't a clear understanding of what a habitual drunkard is as opposed to the extremely simple and easily understood "someone who is habitually drunk most or all of the time.")

Anyway, per the statute as written and the doctrine as applied, if a judge prior to trial suppresses evidence upon any 4th, 5th, or 6th Amendment grounds the prosecution has a right to petition for an appeal. Sorry defense attorneys, you're going to have to keep trying to exclude for due process reasons if you want to avoid giving prosecutors any due process.

12 December 2021

The Second Amendment Shan't be Delayed Until 21

 From Hirschfeld v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 4th Circuit, Case No. 19-2250 (13 July 2021):

 When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is no different.

Plaintiffs seek an injunction and a declaratory judgment that several federal laws and regulations that prevent federally licensed gun dealers from selling handguns to any 18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds possess Second Amendment rights. They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons. We then ask, as our precedent requires, whether the government has met its burden to justify its infringement of those rights under the appropriate level of scrutiny. To justify this restriction, Congress used disproportionate crime rates to craft overinclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing so, Congress focused on purchases from licensed dealers without establishing those dealers as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment. Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status.


 Yes, that's a published opinion. Interestingly, if service in the militia is key in Virginia § 44-1 makes everyone 16 years old a member of the militia and liable to provide their own weapons when mustered.

20 October 2021

Can a Criminal Victim Limit a Prosecutor's Access by Hiring an Attorney?

It's always a concern when your State Bar announces it is going to issue a Commandment Writ in Stone . . . er, Legal Ethics Opinion that might affect you. Right now, the Bar in Virginia is taking comments about a possible new ethics rule (1895) about whether prosecutors can talk to victims of a crime. Let's take a look, shall we?

 The Bar's Question: This opinion request asks whether Rule 4.2 prohibits a prosecutor from contacting a victim in a criminal case when the victim is also a represented plaintiff in a civil case based on the same facts as the criminal case, and when the victim’s civil lawyer represents the victim’s interests in the criminal matter, with a goal of advancing the victim’s interests in the civil case.


[COMMENT]  That is an incredibly limited question and should only impact a very narrow sliver of cases. It's rare that a victim is suing the person who committed the crime against them. The defendant would either have to be rich unto himself or be acting under authority of another who has significant funds (for instance if the defendant was a fireman/policeman/social worker who broke the law while representing his agency).


The Bar's Answer: If the victim is represented by an attorney who claims to represent the victim in both a civil case and the criminal case the prosecutor cannot talk to the victim EXCEPT to address issues specifically required in statutes and the Virginia constitution.


 Why the Bar is Wrong

Things to be considered (in order of primacy)

(1)  Virginia Code § 18.2-460. Obstructing justice; resisting arrest; fleeing from a law-enforcement officer; penalties.

A. If any person without just cause knowingly obstructs . . . attorney for the Commonwealth [or] witness, . . . in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such . . . attorney for the Commonwealth [or] witness . . . he is guilty of a Class 1 misdemeanor.

(2) Case law clearly requires a prosecutor to maintain control of her case. Counsel hired by the victim cannot direct the case.  In fact, a private prosecutor representing someone with a civil interest in the same circumstance (a) violates Due Process under the Virginia Constitution and (b) requires no showing of prejudice on the defendant's part for reversal of a conviction. Cantrell v. Commonwealth, 229 Va. 387 (1985) & Riner v. Commonwealth, 268 Va. 296 (2004).

(3) Virginia Ethics Rule 4.2:  In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(4) Comment 9 to the above Rule:  Concerns regarding the need to protect uncounselled persons against the wiles of opposing counsel and preserving the attorney-client relationship may . . . be involved where a "third-party" witness furnishes testimony in an investigation or proceeding, and although not a formal party, has decided to retain counsel to receive advice with respect thereto.

 Analysis: Let me be fair and state that as a pure analysis of Rule 4.2 the Bar has a proper, but flawed answer. Ethics rules and opinions cannot exist in a pure state - untouched by the taint of actual law and practical reality. As the Bar recognizes in the very first sentence of its analysis, if the victim is represented merely in a related civil matter, the prosecutor is fully able to communicate with the victim. However, the question is framed so that the attorney represents the victim in both the civil and criminal case. The Bar conducts its analysis from this flawed premise.

The flaw in the Bar's analysis is that the civil lawyer is forbidden from influencing the criminal case in a manner meant to bend it to the desired civil result.  Cantrell & Riner supra. This comes out of case law - not a Rule - and therefore has precedential authority over Rule 4.2. The only possible way the Bar can defend against this would be to say that these cases refer only to private prosecutors, not to an attorney attempting to manipulate the course of the criminal trial by denying the prosecution access to the victim. Remember, in the question presented by the Bar the victim's attorney is acting "with a goal of advancing the victim’s interests in the civil case." In other words, the attorney wants to deny the prosecution access to the victim (her client) because she believes (or fears) that such access will lead to or allow a prosecution strategy damaging to the civil case.

Worse for the attorney, denying the prosecutor access to the witness because it could impact a civil case isn't anywhere near "just cause" and therefore makes the victim's attorney a criminal for obstructing justice. § 18.2-460 is black letter law written in the books. It definitely has precedential authority over Rule 4.2. Just imagine the trial: "Ladies and gentleman of the jury, I didn't let the prosecution have access to my client in the Childsroth murder case because we were going to make a lot of money suing the murderer."

Conclusion:  Effectively, the Bar's proposed ethics opinion would only add an extra step in those almost vanishingly few cases it would apply to. The prosecutor would have to call the victim's attorney to ask to speak to his client. The victim's attorney would by law be required to say "yes."  The Rule accomplishes nothing legally except to create a technicality.

Caveat: Remember, this is not a situation (as presented in the question) were the victim faces actual or possible charges herself. In such a case, the victim's attorney would play a legal and practical role in either protecting his client from incriminating herself or negotiating terms under which his client will cooperate and testify (use immunity, derivative use immunity, etc.). Reading Rule 4.2 and comment 9, this seems to be what the rule is tailored for in criminal cases.

10 August 2021

Starting Back In with the 'vid

We've been required to wear masks again this week even if we did the right thing and got our shots. Here are the stats:

01 July 2021

New Virginia Criminal Laws 2021

This is my update as given to the local bar. The officers got a different update because they didn't need as much of an update on sentencing issues. When I did this I'd updated several departments and the parts I'd gone over with them are the smooth parts. The parts where I'm really umm umming are the ones I'd not done until this day.

If you want the typed breakdowns then go to kenlammers.com and you can find both the one I did for the officers and the one I did for this presentation to the attorneys. They are different because I did discuss different things with each group.

18 March 2021

High Point of the Day

I just heard a defense attorney ask a witness if he had “ever been convicted of a crime involving lying, steating, and chealing?”

24 December 2020

CATO: Getting Police Questioning Wrong Through Lack of Context

CATO is a ideologically libertarian think tank which often puts out quite smart think pieces on various topics. Even when I disagree with them, I usually find their pieces well thought out. This was why I was somewhat surprised when I came across this opinion piece about how terrible the police are in the United States because they lie during interrogations and therefore they are mistrusted by the public. 


The Proposition

Standing alone, it's a very dubious proposition that the general public distrusts police because they lie during the questioning of suspects, so the author attempts to strengthen it by positing that lying in the questioning of a suspect leads to (1) police lying about searches in court and (2) lying to keep each other out of trouble. He doesn't provide any proof of that connection and indirectly points toward collateral factors that are much more likely as causes: (1) the imposition of federal search and seizure standards through Mapp, and (2) the loyalty factor found in any group of people who rely upon one another. I agree, these are factors - particularly the second - which can lead the general public to mistrust law enforcement. They aren't tied into using deception during questioning.

That leaves one item supporting the proposition: they do it better in Europe. They always do it better in Europe. Patriotism may be the last recourse of scoundrels, but Europhilia is the last refuge of those who can't support their argument through American jurisprudence. But, okay, they've set the field. Let's try to play on it.

First of all, let's clear out some of the brambles. The overall rate of crime in Britain and Germany has nothing to do with whether suspects are misled during questioning. There are a myriad of social factors that strongly affect the crime rate that all occur well before anyone ends up at the PD in a room with a detective and a two way mirror.1 And, now is when we cut away the idea that being deceptive during questioning leads to the distrust of the general public. Telling us that people in Britain and Germany trust officers more than Americans do is a distraction which the author connects to questioning techniques. At core, the author of the CATO article believes a suspect has a basic right not to be lied to. That kind of solid core belief is respectable. However, it doesn't make the connection the author wants magically appear.


Examining the English Model

Nevertheless, there is one facially solid argument the author has made: the claim that a policy of requiring officers to be honest has resulted in a "high volume of confessions" and fewer false confessions in England. The fact that "high volume" was used to describe the number of confessions would tend to indicate the author didn't have stats which showed better results in England. I went to the article linked to by the author as his proof that England had fewer false confessions, but on a quick read through didn't see that stated unequivocally. I did see the linked article state

Unfortunately, the PEACE model technique . . . needs to become more innovative with regard to challenging the denials of uncooperative suspects. With this in mind, both the Norwegian and the Irish (An Garda Síochána) police have developed their own interview models, which are largely based on the structure and principles of the PEACE model but are more dynamic and flexible in terms of challenging uncooperative interviewees. (p. 706)

 Putting this together with the attached "high volume" statement would tend to indicate they got fewer confessions overall and that the total honesty system fails when it comes up against the uncooperative. As there are fewer confessions overall and system failure without cooperation by the suspect, there are fewer false confessions.

How then do the English get a "high volume of confessions" when they must maintain honesty? Well, they can entirely honestly look at the suspect and say "If you don't talk to us then it will be used against you at trial." Americans seem to operate on the belief that the English have exactly the same set of rights that we do. They don't. Our Supreme Court has interpreted our right to remain silent as nigh unto absolute. Their Parliament has not. Suspects in England don't have to say anything, but that silence will most assuredly be used against them at trial. Here are the pertinent sections from Part III of the Criminal Justice and Public Order Act 1994:

34. If a suspect fails to mention any fact, but uses that fact as part of his defense, the failure can be used against him at trial.

35. A defendant's failure to give evidence at trial can be used against him.

36. If a suspect has evidence on him indicating he had something to do with the crime, but does not explain the presence of the evidence to an officer, the failure to explain can be used against him at trial.

37. If a suspect is found at the scene of a crime, but does not explain his presence to an officer, the failure to explain can be used against him at trial.

How do you not get a high volume of confessions with that big a stick to wave, entirely honestly, at the suspect?2  I'm pretty sure that there are a lot of American officers who would agree to be honest while questioning suspects if they walked into the room with almost a requirement that the suspect explain things to them.3  So, it appears likely that the high volume of confessions in England is due to a very different playing field and that the honesty requirement isn't the prime mover.

I've watched a fair number of police interviews over time. Most start with a short chat that quickly leads into the officer explaining Miranda rights to the suspect. In the last ten years or so in my locale that usually means the officer reading them off a piece of paper, the suspect initialing beside each right and then the suspect signing the bottom of the paper if she waives the rights. The suspect does it almost every time and then starts talking; sometimes she can't even wait that long.4  Do police build rapport with suspects? Yes. Despite the CATO author citing rapport as a terrible and deceptive thing we do in the US, it is a major part of the interview process in England as well. After all, the second phase of the PEACE model, Engage and Explain, "is sometimes described as the Rapport stage of the interview." And let's not forget, the suspect is often trying to build rapport herself so she can lead the detective down a primrose path or sell him a sob story or just catch a break. 

PEACE is all about the rapport and in a situation like England's where the suspect basically has to talk to the officer rapport and picking apart inconsistencies is probably enough in many cases. The US system also relies on rapport, but doesn't have a situation where the suspect faces consequences for not saying anything. It's not quite a comparison of apples to oranges. It's more like comparing a Golden Delicious to a Granny Smith. They're both apples, but you wouldn't use them interchangeably in a recipe.

We could change our system to mimic the English: "You have a right to remain silent. Anything you say or do not say can and will be used against you in a court of law." Then we could adopt the PEACE system from the English. Would it be as effective? Apparently not. However, if you take as a first principle, as the CATO author does, that officers must be entirely honest with suspects that might be a sacrifice you're willing to make.


The Example Given

 Let's look at the example the author gives. Two suspects are put in separate rooms and neither is talking. The officers tell each that the other is singing like a bird in order to get them to talk. Ask yourself if this technique in any way makes the content of the statements of the suspects conform to a preconceived notion of the officers of how the crime occurred. It doesn't. Therefore, should we remove this technique from the officers? Probably not.

We should be concerned if officers are leading a suspect down a path. Didn't you do X? Yes. Then you did Y? Yes. Whenever a questioner asks closed questions, leading a suspect in a certain direction it can be bad. If there's nothing but this sort of questioning that interview is very suspect. Of course, a leading and/or deceptive question may be needed to get things rolling along. Look, we know you killed him, right? Yeah, okay. Just tell me how it went down. Then the suspect fills in the details. An important check in this sort of questioning is the undisclosed fact. If the suspect talks about something which is not told him and not known to those who weren't at the scene then the interview is strong evidence.5  The problem here, and I suspect in most false confessions, isn't the deception. It's the susceptibility of the suspect to suggestion and officers who don't use open ended questions when they should either because of poor training or because they aren't getting the answers they want.



I understand finding the misleading of a suspect during questioning distasteful. In a perfect world robbers, rapists, and serial killers would all confess fully and immediately the moment they were first questioned. Then our police officers would not have to sully themselves with misleading questioning tactics meant to lead to a confession of the act and the CATO author would not be discomforted by reality. Unfortunately, we live in reality. Officers have to do distasteful things because we are choosing the distasteful over the bad or flat-out evil.

Believing that total honesty from officers is a first principle is fine - naive, but fine. However, you must argue its benefits within the American system, not use a comparison with a significantly different system. Explain why it is such a good that it more than compensates for the necessary evil officers now engage in. If you can come up with a solid, practical, American jurisprudence based solution which will provide as good or better results, present it. I'm sure a detective who gets an embezzlement confession without using a single bit of deception will thank you for your efforts. Just please don't ask him to hold his breath while you try to work out that solution.



 1  In the US, the idolization of crime and criminals might have something to do with this. We know and glorify our criminals from Billy the Kid through Bonnie and Clyde and on to the Notorious B.I.G. who was so well known that people adopted his nickname for a Supreme Court Justice.

2  My one semester of college German has not sufficiently prepared me to do as indepth a review of German law, so I'm stuck with what Wikipedia says (rely on this at your own risk): Complete silence is unusable, but selective silence (answering only some questions?) can be pointed out in court. Apparently, this is a statutory right, not a constitutional protection. Also, the warning given by police tells a suspect he can remain silent, but also tells him it is his right to tell the officer of evidence in his favor.

3  As an aside, if the purpose of the constitutional protection is to stop things like confessions being beaten out of a suspect, I don't think this would be unconstitutional in the US either. The Brits have simply decided to walk a different path than we have.

4  I've had more than one patrol officer complain that "I told the guy he had the right to remain silent so don't talk to me and he did anyway so now I'm in court." 

5  I've had that conversation with officers before. "Oh come on John, you're the third detective on this case and it's from twenty-two years back. How can you know this confession is real?" "Because we never told anybody that the robber scattered crayons across the kitchen before he left - not even your office or anybody - and he described his co-defendant doing it." They will hold on to these undisclosed facts like Scrooge McDuck holds on to his money and hide them in Fort Knox if they can.

01 November 2020

The Emotional Gambit and Jail

You'll recall that a few years back I tried to copyright the four reasons that no defendant can ever go to jail. BTW, all you defense attorneys out there are behind on your payments for their use; I figure most of you will have to sell your homes to make your payment by now. Anyway, over time I've come to realize that I've left out one other thing used by defendants in their attempts to avoid jail: The Emotional Gambit.

This epiphany came to me while I was watching a Korean show about their judicial/political system (about 25% of Korean shows seem to involve the judicial system) and the senior prosecutor quizzes a junior prosecutor about the things that defendants say which should never sway a prosecutor.

(1) "I'm sorry."
(2) "Please forgive me."
(3) "I repent."
(4) "I'll never do it again."
(5) "This is unfair."

Then he goes on to warn her (6) "The ones who cry are the most dangerous."

He's advising her before her first solo interrogation. In Korea prosecutors have more responsibilities than US prosecutors. They are tasked with interviewing suspects brought to them by the police and they can work out deals with suspects and victims which, as best I can tell, conclude the case without ever going to court. And, if the multiple Korean prosecutor television shows are to be believed (because we all know TV never get things about court systems wrong), no defense attorneys are involved at any point in that process.

It's a different world. Still, the advice above is something a US prosecutor should consider. So let's go thru the factors.

Crying is something most professionals in a courtroom will see thru jaundiced eyes. We've all too often seen crying as an attempt to manipulate the outcome of a court proceeding. Perhaps as often, we've seen it as a display of anguish at being caught and the fear of punishment (intermixed with the former purpose). On some rare occasions it even appears to be an actual display of remorse for the act. Even then, it is most often situationally prompted remorse. And before people start yelling at me for being a cynical prosecutor unable to recognize that people can be truly remorseful of their wrongful acts, ask yourselves a question: If the lady wailing away in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room crying because she stole $1,500 worth of electronics from Wal-Mart?

Moving on, "I'm sorry" and "I repent" are more specifically expressed variations of the same thing: showings of remorse and refutation of the illegal act. These are basically subject to the same analysis as crying. Again, the most obvious purpose for the apology or refutation is manipulation of the court. To a lesser extent, it can also be seen as a display of anguish at being caught and the fear of punishment, although unlike crying verbal communications probably involve a greater level of manipulation over simple anguish. Again, betimes it appears that defendants are truly sorry and repent their act, but they still usually appear to be situationally prompted. The question to be applied here is the same for crying: If the lady proclaiming her sorrow and repentance in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room with sorrow and repentance in her heart because she stole $1,500 worth of electronics from Wal-Mart?

The remaining three are more open attempts by the defendant to negotiate a better consequence. "Please forgive me" is a bald request for non-punishment. The implication of the request for forgiveness is that forgiveness comes with minimal punishment; it is a request to be treated as the adulteress when Jesus said "Let he who is without sin cast the first stone." As we all recall, no one was left to condemn her and Jesus refused to do more than place the woman on terms of good behavior: "Go forth and sin no more." To put this in more legally cognizable contract terms, the defendant is asking the court to gift her with minimal punishment without even offering consideration.

"I'll never do it again" is similar to "please forgive me" with a small variation. When a defendant says this, it is an open attempt to form a contract with the court. As part of this covenant, she offers to "go forth and sin no more" (be of good behavior). If the court accepts her offer she is asking as reciprocal consideration that the court only impose minimal punishment. 

Finally, "this is unfair" doesn't really concern a contract made by the court; instead it's about one enforced by the court. Assuming it's honestly made, it is a statement that the court's punishment violates the defendant's perception of a societal contract. This could be the defendant perceiving or wishing that the societal contract favors her freedom of action over all ("You can't deny me the right to carry a bazooka."). It could be the defendant perceiving or wishing that rights vested with her instead of another party ("I was going to inherit it in a couple years anyway"). It could be the defendant perceiving that the punishment is greater than a rational cost-benefit analysis would allow ("Five years? For this little charge?"). As well, beyond these more rational reasons; there are a number of less coherent "this is unfair" gripes by defendants which basically break down to the defendant expressing her distress at being caught and held to account.


Of course, it's seldom that any of these six occur without at least some of the others and the big four reasons a person can't go to jail. Most specifically, crying almost never occurs in a vacuum. It's almost always an addition to the other factors and, depending on your judge's proclivities, sometimes a multiplier. Along with the big four, these are all "I did it, but . . ." attempts to sway the outcome.

The most frustrating thing about all of these is that there are certainly people who are truly remorseful and who will never consider undertaking criminal activity again. The problem is that it is nigh unto impossible to separate the wheat from the chaff. Frequent flyers long ago figured out that if they rend their garments and gnash their teeth while wailing about their sorrow for their act they can get a better sentence from Judge X1. And they do it far better than those who are not accustomed to being in court and are somewhat overwhelmed by it all. Those whom we all know are putting on a show often do so far better than those who mean it.

Beyond the manipulators is a group that is as large and probably larger. These are the people I mentioned above who are situationally remorseful. While they are under the thumb of the court and facing sentencing they mean it. They are never going to do it again and they are extremely sorry that they did. They are going to turn their lives around and they mean it. And, having dealt with these people for years, I believe they mean it at the time. Then they get back out on the street. Months later, they're back in front of the court, once again extremely sorry for their act and swearing to the court with zeal of the converted that they will never do it again. And, I believe they mean it then too. It doesn't mean they won't be back in another few months or years in the same mode again . . . and again . . . and again. Lather, rinse, repeat.2

Finally we get to the truly bone deep repentant defendants. While I don't quite believe these are unicorns, I do believe it is incredibly hard for the judicial system to spot them. These most likely come in two flavors: (1) The one-timer, and (2) the out of proportion offender.

The One Timer is the lady who gets a DUI driving back from the office Christmas Party or the guy who shoplifts a book just to see if he can get away with it. If the offense is petty, this person is probably going to get a slap on the wrist and move on with their life.

The Out of Proportion Offender is the petty thief who stabs someone who jumped him, the lady who shot the woman she caught in bed with her husband, or the boat owner who's been told by the harbormaster eight times to tie his boat to the dock correctly and refused to do it resulting in the boat slamming into someone in a kayak and killing them. Here things are more difficult. The person has done an act with a result so drastic that it cannot be merely borne. A jury may nullify and refuse to convict a lady who shot and killed the woman she found in bed with her husband, but a prosecutor should not countenance the killing of a person unless it occurs upon threat of another's life (see "History" here for self defense in Virginia).



Every so often, there is going to be a person among the masses of defendants who is truly remorseful. Discerning that person is nigh unto impossible. Even when you believe a person is showing actual remorse, experience teaches anyone who has been in the courtroom for any period of time that it is almost certainly situationally prompted remorse and will produce little actual change in the person's behavior once she has returned to her life outside the judicial system. Obviously, it is the defense attorney's job to latch onto whatever real/fake/situational remorse his client shows and present that to the sentencing judge to the best of his ability. It's not as obvious that the prosecutor should always entirely discount a showing of remorse. However, a prosecutor should probably start with a fairly strong presumption against believing expressed remorse unless he can picture in his head the defendant being remorseful and repentant even if she'd never been caught and brought to court.  If he cannot, he should leave it to the judge to determine whether this lone defendant among the many is that rare gem of a truly penitent criminal.

1  Hopefully, no one out there who is a legal professional is foolish enough to believe that the frequent flyers don't know the judges just about as well as we do. The FF who wails away in front of Judge X will be stoic and calm in front of Judge Y because it just bounces off Y. Emotional appeal isn't the only thing we see this in. How often do you see décolletage in front of (female, professional, no nonsense) Judge Y as opposed to (old guy, wandering eye) Judge Q? Examples like this abound. Just because you have a piece of paper on your wall stating you can practice law doesn't mean you're the only one who can scope out the judges.

2  In a way, these are the most frustrating people to watch go through the system. You want to believe that if you could just provide these people with well paying, stable jobs they would become vested in society and stay on the straight and narrow. I'm convinced this would work for a fair portion of them, although only God knows what percentage. There's a reason a guy working a $60,000 a year job is less likely to shoplift from WalMart than the guy living off a government check. Of course, the problem is that most of the people who are situationally remorseful are going to go back out into a world with few opportunities to excel and lots of opportunities to fail.

10 September 2020

Abandon the Police: Options

We've all seen the signs and heard the chants. Although there is a core group which will swear it is absolutely serious about this, most people see it as sloganeering and the use of political passions as an excuse to transfer money to pet social projects. That's all in the political realm and I don't do political here. 

It's up to others to decide whether things like Eugene's CAHOOTS program is a contributing factor to Eugene's very high crime rate or if it mitigates what would otherwise be an even higher crime rate.1 Instead, let's talk about a world in which police forces were greatly reduced. What models have existed in the past and might be used if the police became a minimal force?

Constables: The 1,000 Man Model

The Idea: I was doing some research about constables recently and depending upon what period of time you research you find them having a variety of different responsibilities. At one point, it appears that constables were to be in charge of 100 men (basically the head of a household) and had the responsibility of making sure every man was armed (so he could be called up in levy) and that this group enforced the law in their zone.2

How It Works: An adaptation of this model for the modern world would have to include many more people per constable. Perhaps 1 per 1,000 adults would be a more appropriate. So, New York City, with a population of 8,399,000, would go from having 36,000 officers to 8,399 constables. If we take out those under 18 and above 55 it should lower the number to approximately 6,000.

In this system the constable would make certain that the adults in her area were armed well enough to respond to criminal activity. That would probably mean at least one rifle per adult and ammunition. When a criminal act occurred the constable would call up an appropriate number of these adults who would show up armed and act to take the culprit into custody.

Difficulties: From what little I've read on this, problems back in the day used to rise when a person committed a crime in a town and then went back to his own area because the members of the group in the area he lived in neither felt the need to arrest someone who was living peaceably in their area nor felt inclined to let members of another group come into their area to apprehend the criminal. I'll leave the exact parameters of that issue to anyone out there who wants to do some historical research.

Other issues that would seem probable to arise would be the difficulty of getting people to react quickly enough to respond to significant crimes such as robberies or kidnappings, the free rider problem in which a number of people won't respond because of inconvenience or because they perceive the danger to be too great, and the lack of training of the individuals responding which can make them cause much more damage and harm.

Posse Model

The Idea: This is a modification of the idea above wherein there is a law enforcement officer or two for basic peacekeeping and when a major crime happens he summons citizens generally to chase down the bad guys. If you've seen a western movie you've seen this in action.

How It Works: This is a less organized version of the 1,000 Man Model. The lawman doesn't organize the people in his area or make sure they are armed. He just calls them out when he needs them and assumes they will come and come armed and with ammunition.

There are actually laws still on the books from this model. In Virginia there are two statutes which are artifacts of this system:

§ 18.2-463. Refusal to aid officer in execution of his office.

If any person on being required by any sheriff or other officer refuse or neglect to assist him: (1) in the execution of his office in a criminal case, (2) in the preservation of the peace, (3) in the apprehending or securing of any person for a breach of the peace, or (4) in any case of escape or rescue, he shall be guilty of a Class 2 misdemeanor.

§ 18.2-464. Failure to obey order of conservator of the peace.

If any person, being required by a conservator of the peace on view of a breach of the peace or other offense to bring before him the offender, refuse or neglect to obey the conservator of the peace, he shall be guilty of a Class 2 misdemeanor; and if the conservator of the peace declare himself or be known to be such to the person so refusing or neglecting, ignorance of his office shall not be pleaded as an excuse.

The first authorizes a lawman to order citizens to help him. The second allows judges and prosecutors to order citizens to go get the criminals and bring them back. Of course, neither is much used in the current era of professional police forces, but they're still on the books.

Difficulties: This has much the same problems of the 1,000 Man Model. It would be difficult getting people to react quickly enough to respond to significant crimes such as robberies or kidnappings. There will be a free rider problem in which a number of people won't respond because of inconvenience or because they perceive the danger to be too great. The lack of training of the individuals responding could make them cause much more damage and harm. Beyond these problems is the probability that without some sort of supervision to make sure they even have firearms many individuals might not have a suitable weapon or adequate ammunition to accomplish the job if they are called upon.

Vigilance Committees

The Idea: These are committees of concerned local citizens who come together to decide who the troublemakers are and how to handle them. These have played a part in US history and in some places are looked upon with a sense of nostalgia. Montana even has the identifying logo of one of these committees on its highway patrols' patch (3-7-77).

How It Works: Historically, these were groups that came together privately, made their decisions as to whom the bad people in their communities were, and then acted as a group to deal with the bad people. In some cases this meant immediately going after the individual as a group, but in some cases (the 3-7-77 group listed above) the group would first give a warning so the bad person could clear town. In the end, the committee would apply violence as a group to affect a solution to the problem. This could have been anything from riding the bad man out of town on a rail, tar and feathering him, or just out and out killing him.

Difficulties: Some people look upon these with a bit of nostalgia, but they are incredibly problematic. One may be a necessity if there are no available lawmen, but it essentially makes the committee both jury and enforcer, thus eliminating any meaningful due process. Additionally, there is no guarantee that the committee will represent a majority or even a large portion of the population. An armed committee can impose its will thru fear and firepower even if it is a small minority. This is the realm of know-nothings and klansmen. If any form of organized law enforcement checked by courts is available this it will almost always be superior to this.


 These are the primary other historical models I've been able to find, although I guess Mob Justice could be another. Personally, I view mob behavior as perhaps vengeance, but not justice or policing. Good luck on choosing a replacement for lawmen.


1 This strikes me as an extremely difficult metric to compose and thus will be a matter of political and social philosophy unless and until there is some sort of a decision based on a serious lack of fiscal resources.

Yes, I'm sure this and the other models offered today are filled with all sorts of historical inaccuracies and lack a nuanced understanding of how things actually worked. I'm talking about models here, not trying to get a PhD in obscure historical matters.

18 August 2020

Virginia: Proposed New Laws: DOA's / Left Overs

A few more bills that don't fit elsewhere and I don't expect a single one of them to pass.

HB5012 - Would allow law enforcement officers to sue a person or group that harms him while he is on the job.

HB5020 - Would allow anyone with a concealed carry permit to carry in locations a locality has stated a firearm cannot be carried.


(1) Would remove from the firearm purchase for the question whether a person was involuntarily detained temporarily and agreed to check into a mental institution voluntarily. 

(2) In a personal sale of a firearm from person to person, the bill would remove the class 1 misdemeanor punishment from the buyer if no background check was done at a firearm store to confirm the buyer can legally posses, but the class 1 misdemeanor remains for the seller.

That seems backward. The seller may be willfully blind, but he's not the one who knows the buyer has a felony conviction.

Virginia: Proposed New Criminal Laws: Administration


SB5027 - Would illegalize police unions.   DOA.

SB5021 - Would forbid police union contracts from having provisions about hiring, firing, or discipline.  Probably DOA.

Public employee unions have only been legal in Virginia for a couple years and they've not yet caught on. They are also the reason pointed at for many of the problems in Northern and Western cities and activists complain they stop rogue officers from being disciplined. Those who favor unions also tend to be those who want stricter controls on police. They will likely bury these bills in committee.


SB5030 - Requires the disciplinary record of any officer involved in any case to be made available to the Commonwealth Attorney.

Presumably this is to make prosecutors check the records and report anything which might be used against the officer to the defense so it can be brought up in front of the judge or jury. That's not practical in reality. Most prosecutors aren't going to check officers' disciplinary records unless there is a reason to believe a particular officer has been disciplined. A probable side effect of this law will be that nothing will be noted in an officer's disciplinary record unless it is so bad that the officer is going to be fired.

SB5038 - Would create Mobile Crisis Co-Response Teams to deal with mental health issues during calls to respond. Mid-Level chance to pass.

This isn't a bad idea per se and extra resources provided to a locality are a good thing as long as expectations are realistic. These programs don't reduce crime, they just provide extra resources for dealing with a situation. They also cost money and that's probably the greatest impediment to this bill. It will either not pass or be passed with insufficient funding and staffing.


SB5014 - Requires crisis intervention team training for officers (training in dealing with those having mental issues). 

Not a bad idea as long as it is not just something imposed on law enforcement and done by repetition and rote every year so that on years 4, 5, 6, and 7 it's substantively the same as it was in year 1 and provides no actual benefit as it gets tuned out.



(1) Bans law enforcement from taking free military equipment being given away by the federal government. 

For years now, the military has been dumping this equipment on police departments who take the gift and then have 5 military vehicles sitting in the back lot rotting away. In general, I'm okay with departments not getting any more of these.

(2) Requires officers to get training in de-escalation techniques. 

Because this isn't happening already? Why do I get the feeling that there are members of the General Assembly who think officers approach every situation immediately shooting from the hip and screaming "Let God sort them out!"

(3) Requires standardized training across Virginia for officers.

(4) Police departments (not sheriffs) can't get state funds if they don't turn in paperwork having to do with tracking biases, engage in biases, or take equipment from the US military.

(5) A law enforcement agency can't hire someone unless it has done a background check on her employment at any other agencies.

 (6) Requires local law enforcement to report to Richmond if an officer is fired or quits because she violated laws or policies. It also requires this if an officer is merely placed on a Brady list.

That last is interesting considering that a prosecutor who maintains a Brady list will now be harming the officers' certification without due process.

SB5035 - Allows localities to adopt Civilian Review Boards to watch over police departments.

I don't have any particular problem with this. Note that it does not apply to sheriffs - probably because they already have a citizen review board (the voters). This brings more democratic accountability to police departments. It would be interesting to see how many mayors and city councils would cede this power to a citizen board.

SB5044 - Sets the time period for investigation of a citizen complaint to that of an outside accreditation agency.

Not sure what the time frame is because the proposed statute doesn't say.

17 August 2020

Virginia: New Proposed Laws: Attorney General Involvement


SB5040 - The bill will allow the Attorney General to participate in prosecutions of officers charged with a homicide if the local prosecutor allows them to.


SB5024 - Allows the AG to investigate claims of law enforcement behavior violating "rights, privileges, or immunities secured or protected by the laws of the United States and the Commonwealth", try to resolve these problems, and sue to enforce against law enforcement agencies.

This is similar to the federal AG intervening in local law enforcement. It will be interesting to see how this plays out intrastate. In a federal context my impression is that the feds swoop in, declare local departments to be in violation of a particular interpretation of the constitution, and rely on the fact that the County of Pitcairn can't possibly stand up to the federal government to force the locality to conform to the interpretation whether or not the courts would support that interpretation. However, the AG may not have that level of intimidation and greater power levels to rely upon.

Virginia: Proposed New Laws: Changes to Court Procedure

SB5030 Unless a judge allows a variance, search warrants would be served during the day after the officers announce their presence and purpose. If the officers do the search at night or without the knock and announce (and do not have judicial approval for the variance) then the evidence is not admissible in court.

SB5013 - Would allow marijuana citations to be prepaid.

SB5033 - (1) Would first define the "good cause shown" needed for a nolle prosequi , but do so in such vague terms that just about anything could be argued to for under it (or against). Wouldn't change much. (2) Would codify the taking of cases under advisement, but would require prosecution agreement. Currently, a judge can do it without approval from a prosecutor and changing that may not be constitutional as Starrs says it is an inherent power of the judge rooted in the constitution.

SB5007 - Beyond the attempt to dismantle jury sentencing mentioned previously this bill contains a couple other provisions:

(1) If a jury hangs and a mistrial is declared the defendant would not be retried on any of the unresolved charges. 

Don't like dynamite charges now? Wait until this goes into effect. Judges won't let jurors go until they resolve everything no matter how deadlocked they think they are. Actually, I don't have a problem with an end being declared at some point, but perhaps it should be after two juries deadlocked so that one rogue juror (or corrupted juror) cannot spike a trial because "the defendant's a Gemini; Gemini would never do this sort of thing; I don't care what the seven nuns testified to." Or, perhaps the judge could ask the numerical breakdown of the deadlock and if more than three are for a not guilty finding declare a permanent mistrial.

(2) Prosecutors would not be able to demand a jury during a declared emergency. As discussed in the last post, this is most likely not constitutional.

SB5043 - Would allow expungement of conviction of (1) under 21 possession of alcohol, marijuana, or tobacco products, (2) under 21 possession of alcohol, or any possession of marijuana or drugs if the charge has been deferred and dismissed under a first offender program, and (3) someone who received a simple pardon unless they've been convicted of a violent crime, drug distribution, and some others.

Nothing particularly troublesome there.

SB5046 - Would eliminate all mandatory minimum sentences.

While the mandatory minimums serve a purpose in some crimes, they did get expanded too far. It's a shame they're taking a nuke 'em all approach instead of trying to address this in a more nuanced manner.