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.

10 April 2022

Virginia's Constitution Does Not Allow Defendants to Unilaterally Deny Jury Sentencing

My Brethren and Sistren in the Commonwealth's Attorneys offices of Virginia are meeting this week to become educated as to how to improve themselves in the profession. I'll add my two cents worth by supplying this motion which I created when the General Assembly unconstitutionally denied the Commonwealth and the trial judge their right to a complete jury. I haven't had the opportunity to use it yet. I gift it to all of you. Remember, the Virginia Constitution applies to the defense just as much as it does to us.








Case No: CR00-0000

Commonwealth’s Notice

Not Concurring in Defendant’s Waiver of Jury


In the matter of Commonwealth v. John Smith, pursuant to Virginia Constitution Article I section 8, the Commonwealth does not concur in the accused’s partial waiver of a jury.

In support of this the Commonwealth states as follows:

Virginia’s Constitution in Art. I sec. 8 states “If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record . . . waive a jury. In case of such waiver or plea of guilty, the court shall try the case.”

(1) Pursuant to the final sentence, a judge cannot try a person unless he has waived a jury or pled guilty.

(2) Pursuant to the first sentence quoted above, the accused cannot waive a jury without the concurrence of the Commonwealth’s Attorney and Trail Judge.

(3) Nothing in the Virginia Constitution allows for a partial waiver of a jury and juries have been sentencing bodies for the entirety of their existence in Virginia. Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78 Chi.-Kent L. Rev. 937 (2003) (Jury sentencing replaced automatic death penalties for felonies in 1796).

(4) As a statutory matter, the General Assembly has recognized that sentencing by jury remains part of Virginia law, § 19.2-295.1 (Sentencing proceeding by the jury after conviction), although a statute purports to default the accused to the status of having waived the sentencing portion of trial:

§ 19.2-295 (B) When the accused is tried by a jury, deliberations of the jury shall be confined to a determination of the guilt or innocence of the accused, except that when the ascertainment of punishment by the jury has been requested by the accused, a proceeding in accordance with § 19.2-295.1 shall apply.

Inasmuch as § 19.2-295 (B) purports to waive an existing part of a jury for the accused without the concurrence of both the Commonwealth's Attorney and the trial court, this statute directly conflicts with Article I section 8.

(5) In the case at bar, the accused has not given notice under § 19.2-295 (B). This means that the accused is waiving the sentencing portion of the jury. Neither the Commonwealth nor the trial court have concurred in this waiver. Without these necessary concurrences creating a valid waiver, the trial court cannot try this case.

Wherefore, the Commonwealth does not waive a jury in this case and prays the court to impanel a constitutionally valid jury to determine both guilt and the appropriate sentence.

____________________________                     ____________________

Ken Lammers Jr.                                                                   Date

Deputy Commonwealth's Attorney

Pitcairn County


I certify that a copy of this Notice was delivered to Mary Sue, Attorney for the defendant on the date below by email and fax.

____________________________                     ____________________

Ken Lammers Jr.                                                               Date

Deputy Commonwealth's Attorney

Pitcairn County



09 April 2022

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


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

3. Actual Powers: Article One              

Okay, let's move on to Article Two of Chapter 39 (Attorneys) of Title 54.1 (Professions and Occupations). The Article is specifically named "Bar Organization and Government." This is a misnomer, because much of this Article is actually laying out powers and duties of the Virginia Supreme Court - starting with the very first statute. After the second statute creates the Bar, the remaining statutes are a mishmash of duties and powers for both entities.

This Article starts with an enabling statute for the Supreme Court of Virginia giving it the power to set rules and regulations pertaining to lawyers and legal practice.  § 54.1-3909. Then it goes on to create the State Bar and set the lesser parameters within which it can act.  § 54.1-3910 (the previously explored primary enabling statute). After that are the various and sundry other statutes and any powers/duties they may establish.

§ 54.1-3910.1 creates by reference both the Disciplinary Board and the Clerk of the Disciplinary System. The difficulty here is that it doesn't specifically place either of them in the Bar. The general inference by the name of the Chapter would be that they are included, but the very first statute in this Article gives the disciplinary power to the Supreme Court not the Bar. Remember, the initial enabling statute for the Bar limits the Bar to "investigating and reporting violations of rules and regulations." Thus, as the statutes have enabled so far, the place these should both be is under the Supreme Court.

[Reality check. They are both (Board; Clerk) under the Bar. Mayhap there is a statute later enabling this. And before anybody says "but Supreme Court Rule X says . . .", a rule can interpret but not wholly ignore, bypass, or expand beyond an enabling statute. Unless a later statue enables, the limitation in the primary enabling statute of the Bar is clear and unambiguous.]

Anyway, this statute enables the two parties to register penalties with a circuit court that have been assessed pursuant to a Supreme Court Rule (problematic, but outside the scope of what we're covering here).


§ 54.1-3911 enables and requires the Bar to turn over any investigatory evidence it has of ethics violations for attorneys whom the General Assembly is considering for a judgeship to the General Assembly upon request. By inference, it creates a "record of any previous disciplinary action taken against [attorneys]" which must be maintained.


§ 54.1-3912 enables the Supreme Court to tax up to $250 against every member of the Bar (by legal mandate all attorneys in Virginia) and to spend the money to enact Article 2 (§§ 54.1-3909 thru 54.1-3918).


§ 54.1-3913 enables "an authorized officer of the Virginia State Bar" to withdraw the money taxed above so it can be spent.

[Note: Here is where a Supreme Court Rule could clarify who the "authorized officer" is. To do so by naming an officer already enabled to exist by statute would not be ignoring, bypassing, or expanding beyond the enabling statute. It would be clarifying within the statute's mandate.]


§ 54.1-3913.1 creates by reference [the statute implies by recognition] a Client's Protection Fund in the Bar. It also creates by reference the Virginia State Bar's Administration and Finance Account. The only listed power of this account is to transfer money to the Client's Protection Fund. 

Beyond that, it (for now) gives the Supreme Court the power to tax each member of the Bar (by legal mandate all attorneys in Virginia) up to $25 for the Client's Protection Fund.


 Okay for the moment we're going to pause here. The next few statutes should get us to a few with a little more meat to them.

01 April 2022

Actual Powers of the Bar: Starting at the Start


Now we've examined the primary enabling statute for the Bar, let's start back at the beginning of Article I of Chapter 39 and see what various powers are found therein. Keep in mind that words like "member of the Virginia State Bar" do not give the Bar powers. It's merely a long winded way of saying "licensed Virginia attorney.

§ 54.1-3900.01(A) creates by reference "Bar Counsel"1 and give it one power - to make an ex parte motion to a court to appoint someone to takeover a law practice which an attorney can no longer handle.

§ 54.1-3900.01(B) creates by reference the Virginia State Bar Clients' Protection Fund and tells us it has a generalized power to investigate. It also confirms that the Bar can do disciplinary investigations.

§ 54.1-3900.01(E) gives the Bar the duty to pay an attorney who closes down another's practice - if it has the money. It gives the Bar the power to sue the attorney whose practice was closed, or her estate, for the money paid.


§ 54.1-3902(B) makes the Bar the entity which takes a fee from and gives a certificate of registration to "a professional corporation, a professional limited liability company, or a registered limited liability partnership." In the included (B)(1) & (2) there are requirements for the members of the organization, BUT there is neither a granted power to investigate under this section nor a required duty to do so. In other words, this statute makes the Bar nothing more than the fee collection bureaucracy for the Commonwealth.  

[Comment: However, the Bar can still investigate under (B)(2) if the name of the organization violates the ethics rules the attorney members are subject to.]


And that's it. There are more laws pertaining to Bar members as attorneys in this chapter, but nothing more that empowers or obligates the Bar itself.


1  Keep in mind that there may be statutes later on actually stating they create things and positions. Since I am covering this from the beginning forward, when I refer to a statute "creating by reference" a position, committee, etc. it means this is the first statute it appears in not that the statute addressed is the end all be all about it.

31 March 2022

Actual Powers of the Bar: The Primary Enabling Statute


So, I've gone over what the Bar claims its powers and duties are, but the Bar is an agency created by the General Assembly approved by the Governor, and placed in the Supreme Court's demesne. It does things which are executive powers (investigation of attorney misbehavior), It does things that are legislative (making rules cum laws for attorneys). It does things that are judicial (punishing attorneys for rules violations). In other words, it is an agency for regulating and controlling attorneys. As with all administrative agencies, there have to be enabling statutes for any powers it has. 

Powers can be those directly enabled by a statute or those required by inference flowing from a duty assigned. This is the start of the slippery slope as the agency claims more and more power until it is well beyond what could originally have been reasonably read into the enabling statutes. Another possible cause of agency overreach is the vagueness / overbroadness of an enabling statute which basically lays no meaningful parameters so the agency can claim any powers it wants.

With all that in mind, let's see if we can list both the direct and inferred powers of the Virginia State Bar, starting with its primary enabling statute.

§ 54.1-3910 is the statute which creates the Bar as a top down organization which is subject to rules and regulations from the Supreme Court of Virginia and enables it to investigate violations of rules promulgated by the Supreme Court for lawyers and report violations to the court. By inference, it allows the Bar to create three committees: Legal Ethics, Lawyer Advertising and Solicitation, and Unauthorized Practice of Law. It then subjects all lawyers in Virginia to its dominion.

All the committees are given one power by inference: to issue advisory opinions. No other powers are given specifically or through inference. There is also no setting of parameters of the opinions requiring us once again to infer them through the names of the committees what they would be opining about.

[Comment: Under its primary enabling statute the Bar has no power to punish formally or informally any attorney for anything. This is entirely a power of the Supreme Court and if the Bar does not have the power to do it the Supreme Court cannot offload one of its powers on the Bar. As far as it goes, the Bar doesn't have the power to prosecute under the primary enabling statute either. Thus a reported violation would stand on the report.  

Remember, a basic, bedrock tool of statutory interpretation is inclusio unius est exclusio alterius; in other words, if specific a list of things are granted all others are excluded. Thus, if three committees are named all others are disallowed. If there are listed powers/duties for the committees all others are disallowed. HOWEVER, don't get too excited here and start start wringing your hands while you mumble about having the Bar just where you want it (for whatever nefarious reasons you may have for wanting to make our beloved Bar rue the day). There are other statutes scattered around Chapter 39 of Title 54.1 handing other powers to the Bar and we haven't finished looking at them yet. Surely, in the name of all that's good, the Bar's been enabled for all the things it does, all the positions it fills, and all the committees it's formed. We'll keep moving forward to explore further.]