31 May 2003

Scott Peterson Case. This is just plain dumb. Breaking the law and contaminating evidence in a case that already looks like it might be pretty weak.


30 May 2003

A tribute to Chesterfield Police Officer Officer Ryan Cappelletty who gave his life protecting the citizens of Chesterfield and the Commonwealth.


Different treatments of Kilgore's announcement of his campaign against gangs:

Washington Post: A general overview.

Roanoke Times: Discusses the denial of gang presence in Roanoke by city officials and what the exact definition of a gang is.

Washington Times: Puts forth anecdotal stories about what gangs have done.

Roanoke Times (part duex): It's all about Kilgore's run for the governor's office.


A British argument for a lesser included offense contained in rape which could be used to gain more convictions.


An early report on how things are going in Richmond under the new police chief.


How can you mess up Miranda? They did and the defendant cannot be convicted. Thank goodness that the defendant is already in jail for the long term for another murder.


Giving radar-guns to citizens:
"If the policy is instituted, volunteers using county-distributed equipment would clock cars and send the vehicle identification of alleged speeders to the police department."
Gimme Gimme - The first thing I do is start hanging out beside the Interstate and/or the local highway and start painting the police as they went by ignoring the silly speeding laws just like the rest of us (they are after all people too).


West Virginia outlaws dog fights.

In the Year of our Lord 2003**, West Virginia, as a forward thinking, cutting edge State outlaws dog fighting. May some of the remaining Several States follow Her progressive lead.

**2756 A.U.C. - 1424 A.H.


The cases awaiting decision by the federal supreme court. The exact same report from The Guardian and the Dayton Daily News.


The Roanoke Times opposes the killing of Percy Lavar Walton by the Commonwealth. Unusual for a Virginia paper.


Local deputy sells drugs to local prisoners - gets federal conviction.


Roads for a murder trial. Manassas is trying to complete building a road around its courthouse so that can accomodate the Muhammad murder trial.



As of the Sniper Case, you no longer have to be the actual killer to get a capital murder charge.


Local Politics at its best.

08 May 2003: Citizen of Colonial Heights rights letter to editor urging city officials to speak out on issues to inform local citizens.

18 May 2003 (4th letter down): Citizen rights letter to editor stating that he received - in reply to 08 letter - an anonymous mailing which outlines flaws in the Colonial Heights Circuit Court Clerk's office. Citizen infers that this came from the challenger in the race for that office and states that it will not change his vote.

23 May 2003: Challenger writes editor stating she has no reason to anonymously write letters - she has all of this up on her public website. States this is not to embarrass current office holder but inform the citizenry.

29 May 2003: Current Clerk replies. Talks about how courteous and efficient her staff is and how she has lived in Colonial Heights her whole life while Challenger has just moved into town and doesn't understand the people or the office.

29 May 2003 (2d letter down): Citizen replies, gives ringing endorsement of Current Clerk, and uneeded besmirchment of Challenger.

Very interesting. I am not in a position to judge whether the office could be run more efficiently (not my bailiwick) but I can say that it is an extremely friendly office and helpful when I need it.


Commonwealth Attorney races:

Prince George



A puff piece on the Fourth Circuit. Nothing here which we didn't already know.


Hanover County marijuana ring busted.

A huge marijuana distribution bust. I'll make my regular comments. (1) Good work by the officers & (2) my clients still won't have any problem getting whatever they need on the street.


Proof positive that no matter what happens someone will run a scam based on it.

First, there was 9-11, then there was an anti-Islamic backlash, then there was an anti-anti-Islamic backlash. And these guys ran scams based on the third wave. Kind of an innovative and cutting edge cover; unfortunately - for them at least - the scams really weren't anything that hadn't been seen a hundred times over and they were caught.


Woman gets protective order against ex-husband. Woman invites ex over for child's birthday party. Woman and ex get drunk and she "kick[ed] his butt." Both he and she are convicted of violating the protection order.

The Ohio Supreme Court is now considering whether her conviction is valid.

The article contains a lot of whining, by various groups, about how this conviction could be a terrible blow to protective orders and women in general. Buried deep in the article is the one quote I want to focus on:

"Mr. Fallon added that making women immune from such prosecutions could allow them to entrap their former partners by inviting them over and then calling the police.

"I've seen it abused," he said."
This has got to be the understatement of the century. Let me say from the beginning that I know that a good number of protective orders serve a valid purpose. I'm just not sure that the majority of them do; this has got to be one of the most scam ridden parts of the law. In nasty divorces/custody fights they are taken out as bargaining chips either to be negotiated away or used as proof to the judge that the husband is truly dangerous. In a lot of other cases they are taken out by women who have no intention of living separate from the man. In these cases there is usually a valid reason for the order (although often it's a mutually combative relationship - like the one in the article - where the woman has just come out on the losing end the day she filed the order). Still, what's going on is that the woman is manipulating the system to her advantage. She just wants to make sure she's got THE BOMB hanging over his head so that she can make him behave in the manner she wants him to or that the next time they both get drunk and she hits him in the head with a full can of beer he can't hit her back.

I think the lower Ohio courts have gotten it right - the ex should have been found guilty - he is just as responsible for this as she is - but she should not be let off the hook. Hold both sides responsible and this type of order will be subject to much less abuse.


"Physician profiles posted on the Internet under new state rules reveal 48 Virginia-licensed doctors have felony convictions that include second-degree murder, income-tax evasion, mail fraud, drug distribution and attempted cocaine possession."


Having the FBI watch itself just isn't viable. You'll recall my previous posting wherein I stated that the FBI investigating itself will not work. Comes now the proof: the FBI was alerted in 1989 that one of its techs was testifying falsely but it continued to allow him to do so. In 1992 the tech provided THE proof that a man committed a rape. In 1997 the FBI finally owned up to the falsities (allowing the tech to retire). The FBI doesn't inform the lawyers of the 1992 defendant that the evidence was false until FOUR YEARS after they know it to be so.

Inspires confidence, doesn't it?


Virginia's Revenge

A large proportion of drugs coming into Virginia seem to come from NY. And what gets smuggled to them in return? Cheap cigarettes.


28 May 2003

Blawgs I have recently started reading:

Niqabi Paralegal: Discusses U.S. and Muslim law.

FourthAmendment.com: Day by day layout of current 4th Amendment cases.

U.K. Criminal Justice Weblog: Discusses criminal justice on the other side of the pond.


Detache.org: This is the one site I read daily which is not political or legal. It's a guilty pleasure ranking somewhere above chocolate but below the space-opera books I've been hooked on ever since I read Have Spacesuit Will Travel as a kid. And even after that statement I still can't say I scored as high on the geek test as Nina did (only 16.96252%).


Attorney General Kilgore is forming a gang violence task force.


Officer Down

This morning, while responding to a call, Chesterfield Police Officer Officer Ryan Cappelletty was killed. He gave his life protecting the citizens of Chesterfield and the Commonwealth.

Richmond is going to charge you to go to jail:
"The city has also made it more expensive for people who can't keep their noses clean.

Get convicted of a crime in the city, and you'll have to pay a new $5 fee. It now costs $25 in fees to go to City Jail."

It almost goes without saying that this will rarely be enforceable; I hope Richmond isn't counting on too much money from this source.


Reckless Driving (Speed) > 2years + $20K. After fighting for quite a while the N.C. lawyer who was fighting the speeding charge has finally entered an Alford plea because of his poor health and (I'm certain) a realization of how dumb it is to spend $20K fighting a charge like this. My question is how much taxpayer money was wasted making sure this guy was convicted and if it was worth it. They must not have real criminals in Botetourt County if they can put as much effort as it would take to counter that kind of effort in order to convict somebody of something this trivial.


27 May 2003

Further commentary on the Malvo catch-22:
"Malvo's prosecutors are wrong to take the argument as lightly as they have."

"In this sense, the defense is correct when it says that there is an enormous class of "victims" of the sniper spree, even if those victims weren't actually shot. But prosecutors are correct when they say that this designation "raises the notion of 'victimhood' to a totally new dimension, a dimension where one is a victim whether he or she knows it or not. It is a proposed dimension that is insulting to those who are actual victims." So if we recognize that there is a unique class of people out there, but if we cannot fairly call them "victims," what do we call them and how should we treat them? How about if we call them too personally involved in the sniper shootings to fairly judge Malvo? And how about if we preclude them from entering the jury box in his case?"


An argument for not disclosing the name of a defendant in a rape case until the trial is over. Unfortunately, I don't think this can be done in the States due to that pesky 1st Amendment.


The Brits, by adopting Euro-law, have shifted final power in civil rights from the parliment to the courts:
"[I]t is the government itself which has done most to encourage the growth of judicial review. The incorporation of the European Convention of Human Rights (ECHR), a sort of Bill of Rights, into British law in 1998 allowed judges to declare any law incompatible with the ECHR a ruling that in practice requires the government to amend the law."

And the cries of "judicial activism" have already started.


An article addressing indigent representation. If Virginia wants better indigent representation I have a solution: remove caps on fees or at least double the cap for felonies and triple it for criminal misdemeanors and DUI's. Capping misdemeanors at $112 means that if you do mostly criminal law and you want to keep your office doors open you cannot put too much effort into too many misdemeanors. A $395 cap on most felonies means you can put more effort: call the officer, call a witness or two, meet with the prosecutor to negotiate, and do all the paper work involved in the motions and discovery. At $90 per hour you might even be able to do your pretrial work completely (while still being paid) before you go to court. Of course, if any of your clients decide they want a jury you will put much, much more time in than that for which you are paid. Can't afford too many jury trials if you want to keep your office viable.

I make most of my money from indigent representation. I would love to have enough money coming in my front door to be able to employ a secretary and a paralegal. It would defintely raise the level of my representation - which I (in an obvious lack of humility) like to think isn't too shabby as it currently stands - to a new level of competency.


An article expressing concern at the illicit behavior the government has been allowed to get away with in the Malvo case because the judge has found it is technically legal (just barely).


The law as a shield. WOW! Didn't think that was allowed in Virginia. Only swords in this Commonwealth.


Off with their wigs! An anti-wig opinion from Britain.


The D.C. capital police want to extend their jurisdiction to Maryland and Virginia. Why? Let's be clear here - this isn't even the metro police; it's the folks who protect the capital. They should concentrate on their jobs rather than trying to become auxiliries to those running around chasing burglars and petty thieves.


Felons face poor job prospects and thus often become recidivists. Of course, I'm sure the pesky drug habit that a lot of them have contributes.


Gotta love Brit papers. They're about the only place you can read about how wonderful it is that the U.S. locks so many people up:
"If the jail population rises from 73,000 to 100,000, that’s fine by me.

If the scumbags are off the streets, they’re not climbing through my back window, stealing my car, vandalising and terrorising our families and our communities.

If drugs are the root cause of most crime, then it’s easier to get them clean and sober in a secure unit than at a self-help group run by a bearded Guardian reader called Ros."

And then if you get tired of the intellectual stuff there's always the page 3 girl.


26 May 2003

Punishing juries for getting it wrong. Here's a man with a lack of understanding of how things operate in the real world. At first I thought that this was some sort of "Modest Proposal" but after a little consideration I must - sadly - conclude that he is serious.
"Of course, the goal is not to get jurors to convict everyone they think is probably guilty; it’s to get them to convict everyone they think has been proved guilty beyond a reasonable doubt. But it’s easy to adjust incentives to get whatever results you want. If there’s a general sense that juries are too quick to convict, we can either raise the penalty for a false conviction or lower the penalty for a false acquittal. If they’re too quick to acquit, do the opposite. In fact, that’s one of the hallmarks of a good incentive system — it’s easily tweaked when you want it to work a little differently."

Anyone who's tried a criminal case (at least in Virginia) will quickly realize how bad an idea this is. By and large, judges do not come with a great deal of experience from the criminal defense bar. They seem to come from three backgrounds. A significant minority come from the the prosecutor's office with the natural tendencies that accrue to someone from that background. Another group comes from the Attorney General's office where they have spent their career defending the government. A majority seem to come from civil lawyers with some fairly significant political pull. The last two are often scary in court as they lean heavily on the prosecutors to provide them with knowledge and understanding of criminal law. Even those vanishing few with a background defending people's rights tend to change once they have been on the bench for a while. Seeing hundreds, or thousands, of obviously guilty defendants year after year, all offering variants on the same defense, would cause skepticism in the hardiest of souls.

Anyone who's done this kind of work has watched a judge look bewildered or shake his head at a jury verdict for a defendant. In some rare occaisions overt hostility, which had been focused solely on the defense team, manifests itself in the treatment of the errant jury.
"In the end, the jury returned a verdict of not guilty for everyone. [Judge] Hoffman was furious and when one of the marshals reported that after the jury had been discharged he had found a newspaper in the jury room containing an article favorable to [the Defendant], he ordered the U.S. attorney to investigate how it got there. When one of the jurors admitted he had brought in the papaer, Hoffman held him in contempt of court. Thereafter, when he sentenced the juror to a substantial term of imprisonment and the juror's wife cried out in protest, he sent her to prison as well." Trial and Error, John Tucker p. 42.

Now, picture a system wherein that judge doesn't even have to manufacture an excuse, he has the inherent power to punish a jury which "gets it wrong." Does anyone seriously believe that the punishment would be visited upon juries which find for the prosecution in any way near the number of times it would be upon those juries who set a disfavored defendant free? Keep in mind that all defendants are disfavored (I long ago gave up my delusions that "innocent until proven guilty" is believed by anyone in the court but the defendant and jury).

Would I like to see more attentive juries? Sure. But the proffered solution is not the path. Possible solutions: make professionals serve, remove peremptory strikes, give jurors a tablet and pens and tell them to take notes, have jurors choose a foreman at the beginning of the trial and let them adjourn after direct and cross of each witness to determine if they have any questions.

25 May 2003

A quick outline of a preliminary hearing in a Hopewell murder case.


A report on "narco-terrorism."


Jerry Kilgore discussing the GOP's contribution to criminal law.


Discussing Campus Police. You have to feel sorry for these guys. They are police officers but they are usually treated as a lesser class. And they constantly deal with a bunch of kids who are at the age where rebellion against authority is the norm. It's a thankless job.


Decrying the Drug War.
"As long as we continue to address drug abuse as a war, and not face it as a health care issue, we will not make things better for our country or those suffering from drug abuse. We will, however, continue to suffer from its negative consequences."


Why even consider the death penalty for a 72 year old man? By the time you have finished the trial, appeals, habei, etc. the man will almost assuredly not be with us. It seems like a giant waste of money.


Isn't silliness like this usually limited to California?


24 May 2003

Lammers Lawyers.

I've never met someone with the same surname as my family. So it's always a little strange when I do a Google search and see hundreds of "Lammers" mentioned. So, I decided to take a hour or so and see how many Lammers lawyers I could come up with:

Actual Websites~

Jerome B. Lammers (Lammers, Lammers & Kleibacker, LLP) Madison, South Dakota - Martindale
Kimberly A. Lammers (Kutack Rock LLP) Omaha, Nebraska - Martindale
Mark Lammers (Anson Lammers) Tucson, Arizona - Martindale
Eric S. Lammers (Hale and Dorr LLP) District of Columbia
Heather Lammers (Costello Porter Hill Heisterkamp Bushnell & Carpenter LLP) Rapid City, South Dakota - Martindale
James Lammers (Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P.) Stillwater, Minnesota - Martindale
Lawrence J. Lammers (McCarthy, Lammers & Hines) Davenport, Iowa - Martindale

Mentioned in something published on the Web~

Charles Lammers - Tallahassee, Florida
Jack Lammers - (Prosecution Office) Waterloo, Iowa
Jim Lammers (City Attorney) Woodbury, Minnesota
John Herman Lammers (U.S. Attorney) Sioux City, Iowa
John Lammers (Assistant County Attorney) Black Hawk County, Iowa
Tom Lammers (Purdy, Lammers & Schiavone) Celina, Ohio - Martindale
Rockne Lammers - Jerome, Idaho - Matindale

martindale.com only~

Terrence L. Lammers - Santa Barbara, California
Elizabeth Whitesell Lammers - Dunwoody, Georgia
Gail Christy Lammers - (Staff Atty., SAFECO Prop. & Cas. Ins. Co.) Overland Park, Kansas
Jon D. Lammers - Wichita, Kansas
John J. Lammers (V.P., Risk Arbitrage Dept.) New York, New York
Edward Gerard Lammers (Murphy Stecich & Powell, L.L.P.) Tarrytown, New York
Gary L. Lammers - Ottawa, Ohio
H. Jolyon Lammers - Media, Pennsylvania
Ryker Lammers - Madison, South Dakota
M. Paul Lammers, Jr. - Park City, Utah


Barristers in Britain are trying to stop (1) the abrogation of trial by jury, (2) trial of character rather than facts, and (3) the elimination of double jeopardy protections.

Things are getting pretty scary over there. They are also considering national papers.


Illinois is trying to fix its death penalty law.


Prohibition fails / Prescription Works.

Of course, this could never be implemented in the States but in Switzerland they have been prescribing hard drugs to those who are addicted and it has had amazing results in its impact on crime. (article found via UK Criminal Justice Weblog)

Of course, it's the Guardian so take it with a grain of salt.


FBI trying to fix itself.

Because the FBI has been losing people's trust due to things like lab misconduct and punishing whistleblowers it is trying to revamp its internal investigative office. Unsat. For the immediate future, the only way that lab is trustworthy is with external overview including a body made up of at least 50% unfriendlies (like NACDL members). You have to understand exactly how devastating it is to have an FBI "expert" testify that there is a 1 in 6 billion chance that the DNA might point to someone other than your client. And if he's lying (as has happened) then it is not in the FBI's interest to turn on their own in the middle of a trial wherein they are convinced they have found the guilty party.


An Interesting Catch-22
The Continuing Adventures in the Malvo Case

Pertinent code sections:

18.2-31(13) Capital Offense-Terrorism
18.2-46.4 Definition of "Act of Terrorism"

The Defense Team in Malvo has caught the prosecution in an interesting conundrum. To charge terrorism the prosecution has to show simple intimidation of citizens or intimidation with intent to coerce the government. Naturally, intimidation - as a matter of course - requires people. You can't intimidate laws, or constitutions, or political philosophies; you can only intimidate the people following them. In order to prove the case the prosecution must prove that people felt they might become victims directly or indirectly (or that they were). This includes every single member of the jury pool which should exclude them from the jury. Therefore, the trial should be moved to a different jurisdiction.

It's a brilliant argument and you can tell by the prosecutor's use of hyperbole that it is a far better legal argument than the prosecution has available:
"In response, Horan said the claim that all county residents are potential victims is 'factually preposterous.'

'It raises the notion of 'victimhood' to a totally new dimension, a dimension where one is a victim whether he knows it or not,' Horan wrote. 'It is a proposed dimension that is insulting to those who are actual victims.'"

The prosecution should lose the argument. He won't, but he should.

This is beginning to feel more and more like a show trial. I'll be interested to see what excuse the judge uses to get past this issue.

UPDATE: I may be wrong in my belief that the case will not be transferred to another jurisdiction. SW Virginia Law Blog points out an article discussing the judge's inquiries as to possible other locales. This is what I get when I don't check the other Virginia blawg before I post.

The Virginia State Police are looking to hire YOU.


The fun of going to trial after your client has made a full confession.
"The suspect, Derrik Wakie Smith, called out to a detective: 'Just come on in. Shut the door. I know what you want to hear.'"


Carpetbaggers. What can you do?


Fun and games in the run for the Commonwealth Attorney's office in Loudon County.


23 May 2003

Hampton's Commonwealth Attorney is holding classes to show citizens how courts actually work.

I suspect that citizens who don't have contact with the system still won't understand it. Heck, a lot of lawyers I know don't have any idea how the courts work.


Prosecutor Overreach v. Jury Sense

A mentally limited man takes part in a beating wherein his comrades beat a man's head in. The man only kicked the victim in the shoulder once (not causing any major damage).

The prosecutor asked for first-degree murder - the jury returns second-degree murder.

The prosecutor asked for 40 years - the jury returned 10 years.


SHOCK! GASP! Students at Randolph-Macon are smoking marijuana and using uppers to keep themselves sharp when studying. Cause, you know, there's no other school out there with kids who use uppers to keep going (at least the really fanatical or desperate ones). And marijuana? Can you believe that a large number of kids might have some who smoke? I know I'm shocked.



Gleefully plagiarized from detache.org, the "blog of your average complex introverted sarcastic twenty-something ex-violinist asian conservative sorority girl with a southern accent."


You know, I just can't picture a bunch of German-Americans ( those of my ilk) getting together to put together something this humorous. Well, maybe if there was beer, lots and lots of beer . . .


22 May 2003

Naw, no one will abuse their powers under Homeland Security. It'll never happen. Never.


20 May 2003

Scary Statistics

"The Justice Department had detained fewer than 50 people as material witnesses without charging them in the war in terror as of January and had gained 47 court-ordered delays in notifying people of search warrants, according to documents released Tuesday. "

Libraries have also been contacted about 50 times about what the patrons have been doing.

The government's characterization of 50 people being arrested without charges as "fewer than" does not take the sting out of it happening.

Update: The NYTimes reports

"[A]ccording to the report, the Justice Department sought 248 times to delay having to notify the target of an investigation that a warrant had been executed. The department said it was never turned down by a court in its requests to delay the notification, and the delays sometimes amounted to 90 days or more."

This bothers me:

"In the case of the anthrax attacks in the fall of 2001, for instance, the department said a provision of the law allowing a court to issue a search warrant in another jurisdiction allowed a Washington judge to issue a warrant for Florida."

For those of you who need a translation, this means that the government can find that one judge who will sign any warrant put in front of him and use him to sidestep that pesky judge in Iowa or Texas or . . . who just won't sign people's rights away. And then under Leon the search will, of course, be valid even if that judge would not have issued it.



In North Carolina it's O.K. to shoot loose dogs. The officers shot and killed five dogs. "In two cases, the dogs were shot as they ran or walked away from the officers."

Hmmmm... If you can hit the dog with a bullet couldn't you hit it with a tranquilizer dart?


The Missouri Supreme Court ruled that a fairly typical police technique is unconstitutional.

Police around the nation know that if they get a flawed confession (without telling the suspect his Miranda rights) they can read the Miranda rights to the the suspect and ask the same questions and the statements after are admissible. The courts usually rely on the specious argument that once the rights have been told to the suspect he understands that nothing he said previously is allowed in court (although that is never explained to the defendant). Back in the real world, the suspect thinks he has already confessed so saying it again will not change anything; of course, police do not disabuse him of this quite rational conclusion.

I think the requestioning can be constitutional if the suspect is specifically informed that nothing he has said prior to the Miranda warnings is admissable in court.


Inmates have a constitutional right to be on the internet.

I want to disagree with this but I can't. I think that the ACLU's argument about the sites being out of the State and.or the country is a red herring meant to distract attention from the one person clearly within the State's jurisdiction (the prisoner). Still, I think the judge is absolutely correct when he states that "the law has no legitimate prison management function." That is, as long as the prisoner doesn't advertise for someone to break him out.


Thank God for the Constitution

Our rights were at least somewhat frozen when the Amendments were added to our federal constitution. The British, whence came our "reverence for the characteristic rights of freemen," are not blessed with such guarantees.

As best as I can make out, the British are just about to have a disastrous curtailment of their rights. First, and most important, the proscription against double jeopardy is about to be nullified (or as the article proclaims "reformed"). They are going to abrogate it and replace it with a tripartite test:

"First, the police will not be allowed to reinvestigate the offence without the consent of the Director of Public Prosecutions, who must be satisfied that there is, or is likely to be, sufficient new evidence to warrant investigation. Secondly, no application may be made for a retrial without the consent of the DPP, who must be satisfied that there appears to be new and compelling evidence of guilt and that it is in the public interest for the application to proceed. Thirdly, the Court of Appeal must be satisfied that there is new and compelling evidence of guilt and that it is in the interests of justice to order a retrial."

Let's put this in a perspective that we Americans can understand. Think of the Ashcroft Justice Department and the Fourth Circuit operating under these rules. Trial, retrial, and trial again until the government got the "correct" result.

Second, they are trying to change their rules of evidence to allow the prosecution to prejudice the jury by introducing the Defendant's prior convictions as part of the reason for conviction. The author engages in a disingenuous argument that because positive character evidence can be used as evidence of innocence the record of conviction must be admitted as evidence and the record will not be used to overwhelm the jury's judgment of the evidence when the actual evidence is weak. Yeah, right. If the problem is that the Defendant enjoys such an unfair advantage why not try to change the rules so that positive character evidence cannot be used as evidence of innocence? Gotta be some reason that prosecutors salivate at the opportunity to introduce a Defendant's record - could it be because they think they can convict on character rather than evidence?

It's scary what's going on over there. Isn't their liberal party supposed to be in charge?


19 May 2003

Federal officials in Iowa cannot proceed on a prosecution because they will not pay for a bus ticket for the suspect to come back and turn himself in.

That's just silly.


Remember the idiotic Japanese newsman who took a grenade from Iraq as a souvenir and then was charged with murder when it exploded in a Jordanian airport? "[P]rosecutor Col. Mohannad Hijazi replaced the charge against Hiroki Gomi with "unintentional harm," bringing down the sentence, if convicted, from the death penalty to a maximum of 15 years in prison."

Pop quiz:

Which would you prefer 15 years in Red Onion or 15 years in a Jordanian prison?


Prosecution Overreach v. Jury Common Sense

Two cars were dragging and hit a third car, killing its occupants. The prosecutor really stretched and tried to convict of "second-degree murder under the legal theory of implied malice." On a theory, I guess, that every time you speed you have a malicious intent.

The jury thought about it, applied common sense, and rejected the theory. They did not let the drivers go; they convicted the drivers of the appropriate offense: manslaughter.


Choose Your Death

If it isn't cruel and unusual to force a man to choose his method of execution I don't know what is.


From TalkLeft (an excellent blawg which I frequent far less than I should because it is the only website I have found which just won't work with my preferred browser, Opera):

Alabama is now committing to a policy of not stopping people because of racial profiling. You know, this is garbage. We put officers in a position wherein we tell them when their suspicions are not constitutionally valid they can use bad-faith pretense stops in order to effect an investigative stop: e.g. "Ma'am, I pulled you over for a cracked windshield. Before I let you go, you don't have any drugs in your car? [no] Then you won't mind if I have a quick look inside?" We train them to do this and wink at them in court when they come in and testify that the only reason for the stop was the cracked windshield (for which they don't even write a ticket).

Basically, I'm saying that we need to let the officers off the hook by leaving them alone to continue the bad-faith pretense stops which we have told them they should be doing over and over again or by limiting them solely to the scope of the matter for which they stopped the car (with necessary plain view exceptions): e.g. no asking if drugs are in the car, if the officer can search it, or having a drug dog just appear out of thin air a minute after the stop. Personally, I favor the second option but we need to be clear for the officer on the road whichever route we choose.


18 May 2003

Prosecutor Update

The races are on. The Republican Party has chosen a candidate for Loudon and two Republicans are competing for the Prince George nomination.

Who needs a website? In Westmoreland County the Journal Press publishes a page for the Commonwealth Attorney. I've seen Court pages and Arrest pages but this is the first time I've seen a paper give a prosecutor his own page.


Wallens Ridge is no longer a SuperMax and Red Onion only has 550 SuperMax beds left (out of 1,200). I still think they did this so out of state prisoners stored there wouldn't cause as much a fuss as had occurred previously. Heck, they're even building classrooms.


The prosecutor is not happy with the bond so he's appealing it. I had a prosecutor move for a revocation of bond hearing once but the judge shut it down failry quickly. Of course, then my client went out and shoplifted again so it was a moot point; for some reason the judge wasn't too keen on granting bond after that.


Hampton has had problems in its Circuit Court Clerk's Office. Therefore, it now has one of the few real elections for Clerk and is drawing some news coverage.


Post conviction regret: as happens every so often the client regrets his decision and blames the attorney.

"Pfohl, after firing his pro-bono attorneys Joseph R. Conte and Jensen E. Barber, said that he lied to the court on Dec. 20, 2002, when he said he was satisfied with his attorneys services, that he understood the consequences of his plea and that he was guilty of second-degree murder."

"In an April 4 written letter to Barber, Pfohl stated that because of developments in his case he believes Barber intimidated him and represented your own opinion and wishes, not mine. "

"For whatever reasons, you have not acted in my best interests and have encouraged me to forfeit all of my rights and any defense I might have had by pleading guilty to a charge I am not guilty of and which the commonwealth cannot prove every element of! Pfohl wrote. "

Before you can plead guilty a judge asks you about your understanding of your charges, your satisfaction with your attorney, and whether you are pleading of your own free will. It all gets put on the record and means your client cannot deny his understanding and exercise of free will. A good number of these folks are just saying what they think they are supposed to say. Still, when you see a letter like this you have to suspect that this is someone who trying to manipulate the system.


Can't allow open discovery - it would make it harder for the prosecutor to engage in trial by ambush.

As a matter of law I think that the judge was right on some of this but the law is clear that district court judges can order a Bill of Particulars and that would definitely include some of the information requested. Not that they ever do.


The Daily Progress weighs in on the case which Steve Benjamin argued recently in the federal supreme court. The city of Richmond basically declared its public housing, and the streets surrounding it, private property and started issuing trespass violations. Even the Virginia courts couldn't find that constitutional.

"[T]he method for dealing with such problems on other public streets and sidewalks is to provide law enforcement not to simply ban the public from those public areas."


The Bee's a'Buzzin'

North Carolina is considering a moratorium on the death penalty and the Bee is having none of it.

To paraphrase its "logic": there may be problems with the system but that shouldn't stop us from killing people who were convicted under the flawed system while we figure out the flaws.

Yeah, so what if we find out someone shouldn't have been killed; accidents happen.


Wow! Danville has 13 gangs. How? Why? What makes Danville such a magnet? It cannot be drugs alone. You wouldn't think that drugs would be as major a fact in a city which is not intersected by I-81, 85, or 95.


An article discussing how South Carolina's "anti-lynching" statutes are being used primarily against balck men.

"The only other states with lynching statutes still on the books are California, Virginia and West Virginia, though the laws are rarely used."

These laws (at least in Virginia) would be more accurately described as mob-violence laws. I've seen them used a few times and they usually seem to be applied to kids in gangs who go as a group to beat up someone who has raised their ire. They probably need to be on the books but if they cause mental anguish perhaps they could be retitled.


10 years for molesting four boys. Not adequate.


An article describing the police use of aircraft to measure the speed of your car as it goes down the road.

Big Brother is watching.


Who Needs a Perp Walk?

These pictures are in the Hopewell News and it looks like they're in jail garb. If this ain't a no - no it oughta be.


From How Appealing

A jury in New York "found Mr. Nelson guilty on Wednesday of violating Mr. Rosenbaum's civil rights by stabbing him during the 1991 racial disturbance in Brooklyn, but not guilty of causing the death itself."

This is one of those very few times that publicity hurt the prosecutor rather than the defendant. And it actually worked a good. The publicity counteracted an incredibly bad decision by the judge that despite the fact that it appears as though the victim would not have died if the hospital did its job correctly ("Mr. Rosenbaum was alert for some time after the stabbing, but at Kings County Hospital Center, the State Health Department determined, doctors failed to notice a four-inch-deep stab wound for nearly an hour, and he bled to death internally") no mention of the malpractice could come in "because Mr. Rosenbaum would not have died had he not been stabbed in the first place, the hospital's conduct was beside the point."


17 May 2003

Things to look for in the future:

Rumint at the CLE had it that 18.2 and 19.2 are being revamped and will probably morph into 18.3 and 19.3.

Of course, I'll believe it when I see it.


Jokes at yesterdays criminal defense bar CLE:

(1) Marriage Sentence

Sue wakes up to find that her husband is not in bed with her. She goes down to the kitchen and finds him sitting there with tears flowing down his face. "What's the matter?"

"Well," he says, "You remember when I was 16 and you were 14 and we had just gotten finished steaming up the windows in my car when your daddy opened the door with a shotgun and said I had a choice of marrying you or going away for 20 years?"


"My sentence would have been up today.''

(2) Difference in Judges

The legislature makes it illegal for ducks with white tailfeathers to be shot. Hunting season rolls around and a supreme court justice, a court of appeals judge, a circuit court judge, and a district court judge all go hunting.

The Justice has a duck pop up in front of him and tells his clerk to examine the duck to see if the feathers are the right color. By the time the clerk gets his binoculars the duck is gone.

The court of appeals judge has four ducks pop up in front of him. He and his clerk have their binoculars up and are peering but by the time they figure out which duck doesn't have white feathers it is too late to shoot.

The circuit court judge has twenty ducks pop up in front of him. He looks up and is pretty sure that the 3 on the left hand side don't have white feathers and shoots them hoping they don't have white feathers.

The district court judge stumbles into a pond and at least 200 ducks spring into the air around him. He grabs his pump action shotgun and brings down scores of ducks reasoning that white feathers are an issue for the Circuit Court.

(3) Ashcroft

John Ashcroft visits an elementary school and after giving a speech tells the kids he will answer some questions. Bobby raises his hand and says, "I've got two questions. Why does the librarian have to tell you what books I check out? And, why have you locked up our school's maintenance man, Muhammed, as a material witness for the last six months without letting him see a lawyer or charging him with a crime?"

Just then the bell rings and everyone goes outside for recess. When they come back Ashcroft is still there and asks again if anyone has a question. Joan raises her hand, "I've got four questions. Why does the librarian have to tell you what books I check out? Why have you locked up our school's maintenance man, Muhammed, as a material witness for the last six months without letting him see a lawyer or charging him with a crime? Why did the bell for recess ring 20 minutes early? And, where's Bobby?"

I said they were jokes; I didn't say they were good.


Bar Name Change

Sorry about not posting yesterday. I was at a criminal defense bar CLE.

During the meeting the Virginia College of Criminal Defense Attorneys changed its name to the Virginia Association of Criminal Defense Lawyers. The previous name had more class but some people in the organization were obsessed with changing the name so that it became an exact mirror of the National Association of Criminal Defense Lawyers. The rest of us really didn't care enough to oppose their zealous advocacy.


17 face trial in Prince William for distribution and Roanoke is wrapping up the trial of 1 of 15 defendants for distribution (the others pled and snitched).

And the thing is - my clients don't seem to be having any harder time getting drugs.


Why must the Roanoke schools report alleged, unproven and/or unserious infractions rather than "only those incidents resulting in expulsion, long-term suspension or criminal charges?" The only reason I can think of is that somebody needs it for a line on the budget request:

School security (128 incidents) James Madison Middle School.................................$10,000.

looks a lot better than

School security (3 incidents)......................................................................................$10,000.

Still, even considering possible political motivations for elevating them - the numbers seem like they were purposely skewed downward. Of course, anyone cynical enough to cook up the above explanation for the need to raise the numbers might think that the number were purposefully reported low so that school officialdom would look more competent in their jobs than they actually are.

This reminds me of when my on-campus apartment was broken into while I was in law school and a roomate's wallet stolen. We reported it to campus security - who did nothing - and a few days later had to go down to the police station to report it to Lexington police because the school had not.


7 years is not enough. Unless serious mental defect was proven there is no excuse for what this man did to his 2 year old stepson.


An article from the Times reporting (as much as it can) on concerns that the Brit legal system is slowly being shut off from media coverage. As a person inf favor of media coverage of the courts, I agree. I think all courts should be covered like Wise County.

Another thing that caught my eye is the section talking about how "[t]he Criminal Justice Bill allows the Court of Appeal to consider ordering a retrial in criminal cases where the prosecution claims there is new and compelling evidence." I guess they do not have to worry about double jeopardy. The ability of the government to try and retry until they get it right is just scary.


As I have said before, Egypt is the one ray of hope in the Middle East. Now there is a movement toward repealing the emergency laws.


Life as a federal snitch.

Have your life directly threatened and the fedgov could care less; publish a book without giving the proesecutors a heads up - go to jail. But they are only doing it because they are worried for your safety.


Are you dubious about all those wonderful ads which arrive daily in your e-mail? Does anyone actually believe those offers? Apparently enough people bite that the fedgov had to step in.

The feds have crashed down on a number of internet scammers including:

(1) An online pyramid investment scheme netted $60 million and resulted in the extradition of two people from Costa Rica.

(2) A prolific spammer based in Buffalo was arrested on Tuesday and accused of sending 825 million e-mail messages over Earthlink's Internet services by setting up 343 accounts with fraudulent credit card numbers.

(3) A couple was indicted in California on charges of operating a fraudulent Russian dating scheme that stole $600,000 from 400 victims over three years. The two had contacted male victims through personal advertisements posing as Russian or Ukrainian women.

This if from the NYTimes but if you don't believe it anymore the article is mirrored at CNN (or was it mirrored by NYTimes?).


This signal means that the infield fly rule has been invoked. However, the Expos don't seem to understand this rule.

O.K., it's not a crime but it oughta be. I think I learned this rule about the same time in my childhood that I learned taking things that don't belong to you is bad.

Maybe the Expos should go to this school for a refresher course:


Feeding your neighbor's cat to an alligator is a felony in Florida.

As a cat owner, I can't say I have a problem with this.


15 May 2003

Nobody wants to be tried where they are charged.

Malvo's lawyers are trying to move his trial because it will be impossible to get an impartial jury in Fairfax. They are claiming that the jury pool has been poisoned by media coverage. Of course, they are correct. Of course, the case won't be transferred. As a matter of pragmatism, where could you find a place in the United States (much less the Commonwealth) that hasn't been tainted by the news coverage? Maybe they could try Lee County; you can't get much more remote from any other place in Virginia. Can you imagine a prosecutor from Fairfax trying a case out in the middle of the mountains?

Sa'ad El-Amin wants to move his fedgov charges out of Richmond. SW Virginia Law Blog wonders why he would want to do this as he must have some friends in town in order to get elected to the city council. The problem is that none of the people who vote him into office are going to make it onto a fedgov jury. And the rest of us have heard about the disbarment and the lawsuits. Still, once they get rid of him it will make Richmond politics much more boring.


A couple charged with 568 rapes.

"Deborah and Donny Hoskinson, of Boston, Ky., each face more than 500 counts of first-degree rape. Donny Hoskinson reportedly raped the girl while his wife allegedly coached the girl and took pictures."


The Democrats aren't happy just filibustering judges anymore. Now they are going to try and filibuster the law which is meant to protect gun companies from extinction by lawsuit.


Must have been a slow news cycle. This reporter really stretched to make this into an article.

There's absolutely no wrongdoing going on here. Judge Hauler is not behaving any differently in his court. I don't know how the reporter got started on this article but it feels like part of the political gamesmanship which has been going on in that courthouse for the last couple years. Ms. Fischer should be more careful - doesn't she read the articles which have been published in her own paper?


Whatd'yaknow? The feds have actually taken a break from convicting kids for having a pistol or selling a rock to take on someone who the feds should be investigating and/or prosecuting. More power to them.


Think the fedgov had tamed Microsft's predatory tendencies? Think again.

"Under NO circumstances lose against Linux."

The article describes selling at a loss or even giving away software to cut out Linux. Well, why not? The same tactics worked against WordPerfect, Netscape, etc.


SW Virginia Law points out the new laws as laid out in a brief for the Circuit Courts.

Must admit that I am pleased to see the resisting arrest charge. Now my clients will not so often be faced with the choice of pleading to an obstruction they didn't commit or a felony eluding which they don't deserve. Ruckman and Jones are still out there (although generally ignored by judges I practice in front of) so the obstruction arguments won't go away otherwise. Good gracious, I wish the Legislature would fix that gawd-awful law. Every client I get who stiffened his arm while the officer was handcuffing him gets charged with it even though the two cases supra seem to make it clear that the act required must be one which would stop the arrest not impede an intermediate act. Judges convict. Every time.


In criminal investigations, detectives could look at global email traffic to see if known criminals are part of a wider community. The technique would also work for phone calls.

Interesting but scary. Just imagine the fishing expeditions: Law Enforcement could wade thru tons of e-mail connections just looking for a pattern which establishes a central actor and then try to get a subpoena for that actor's specific e-mails (or his entire computer) without really establishing anything other than the fact that someone receives a lot of e-mail from a group of people.


Juries in Chesterfield County

There have been three recent murder jury trials in Chesterfield County (that I know of). I saw part of each:

Commonwealth v. Javon Singleton:

Tyrone Singleton's testimony, under direct examination by Assistant Commonwealth Attorney David Rigler, was devastating. About half way thru the direct Mr. Rigler started asking questions which would implicate Javon and Tyrone just shut down. You could have cut the silence in the courtroom with a knife. The kid wasn't refusing to testify because he was being a jerk - he was just so emotional that he could not answer. After attempts both with and without the jury present Dave took a smart tack and starting asking questions which were away from the sensitive questions and once the kid started talking led him back to the tough questions. The kid paused and then, with a lot of emotion, told how his brother admitted guilt. It was the gold standard as far as testimony goes.

Unfortunately, for the prosecution at least, the prosecution team followed that with an absolutely ridiculous professional snitch. He came out with his hair spiked up and testified in a manner which I would describe as slick, casual, humorous, loud, and DUMB. On a gold standard this guy was tin. Every bit of ground the prosecution had gained disappeared. Then it got even worse when the defense attorney stood up and basically got the guy to admit that he was a professional snitch and had gotten benefits time and time again from testifying. But the snitch swore up and down that he didn't have any expectation of getting anything this time: he was just testifying from the goodness of his heart. He testified on about 4 facts which might have been helpful but he was so bizarre that his evidence and the kid's were overwhelmed.

Javon Singleton was convicted of a class 1 misdemeanor.

Commonwealth v. Justin P. Dejarnett:

In this trial the government tried to convict a Dejarnett for giving a methadone pill to another kid. The other kid then went and drank to excess, took Xanax, and took the one methadone pill. After he fell asleep the kid's system became so depressed that he stopped breathing and died. Chesterfield then charged the last three people who were involved in the chain of trade/sale with killing the kid. The two furthest removed cooperated and took deals. Mr. Dejarnett, who actually gave the pill to the kid, fought it in a jury trial.

The prosecutor's case was in trouble from the beginning. The prosecution's own expert witnesses could not testify that the one methadone pill was the cause of death. The best they could say was that the the combination of all the junk the kid had in his system caused the death. I was surprised that it even survived the motion to strike. It survived on a felony murder theory with Judge Gill stating that it should go to the jury in order to decide "foreseeability."

I wasn't able to see the end of the trial but I'm told that the jury took less than 20 minutes to return a not guilty plea.

Commonwealth v. Shirtorya Christian:

This courtroom was full when I tried to go in and watch part of this. The prosecution was after first degree murder and David Whaley got them down to second degree. The jury still recommended 38 years.


14 May 2003

Warner has signed into law stiffer penalties for driving like a madman on I-81. Anyone who has driven that highway knows they're badly needed.

This article urges higher penalties everywhere.


The NAACP sued gun manufacturers and lost.

Common sense exists - even in New York.

An article from someone who clearly doesn't understand either DUI's or the law pertaining to them.



Over the last week or so I have been using some more advanced html features as I attempt to teach my self html. I use w.bloggar to post and Opera as my primary browser. Those few times that I use a secondary browser it is Netscape or Mozilla. In all of these browsers my site performed perfectly and (I thought) started to look pretty sharp. Unfortunately, I was notified a couple days ago that the site was messed up when viewed in Explorer. I checked; it was.

The attempts to fix whatever was making Explorer screw up failed. I think this happened because there was actually nothing wrong with the language and the problem was with Explorer.

Eventually, messing around with the language actually damaged the site so that it would not work properly with any browser and I had to load another template and fix it up.

I apologize if you came to check my blawg during that time and it was screwed up.


Malvo's lawyers are trying to get his trial in Virginia precluded because he was charged in federal court and Virginia law prohibits prosecution after federal charges are filed on the same crime.

This is interesting and innovative. It won't work but it is a fresh angle. The judge will rule that the charges are different and therefore the law does not apply.


Virginia is setting up uber public defenders to handle death penalty cases. Probably a good idea.

"We thought our system was doing pretty good but we thought we could improve it," Stolle said. "This is what we need to do to have an adequate defense. It's prophylactic as opposed to reactive."


Surprising comment:

"As the chairman of a federal commission on terrorism policy, Gilmore commands attention when he warns that Americans' freedom and privacy could be jeopardized by an overzealous drive for security."


13 May 2003

The Virginia State Police have more armored cars than any other State? Why? Are we going to get invaded soon?

By the way, why wouldn't somebody just shoot the tires out?


Need to lose weight? You could always go on the government's diet program.

"Minnesota is considering following Virginia's lead in serving only two meals per day on weekends and calling one of them 'brunch.'"

And then there was the client I had who worked as a trustee in the kitchen and told me that the "meat pellets" which are put into all the meals come in a bag marked "Not for Human Consumption."


The Wisconsin Supreme Court overturned a sexual assault conviction because one of the jurors didn't understand English. The truly scary thing is that the Court of Appeals had previously left the conviction undisturbed.


The RIAA sent threatening letters to Penn State because the University has a professor emeritus named "Usher" and his name was reachable by web crawlers.

A man who trains British legal professionals explains why he thinks they are idiots

"Take the would-be barrister who questioned me, a burglary victim, in court to identify the burglar whom I had seen.

'It was dark, wasn't it?' 'No, it was light.'

She took a moment to consider. 'But apart from the light. It was dark?'

. . .

One was questioning me about why I hadn't parked outside my house.

'There were no spaces,' I explained reasonably.

'I put it to you that you are lying,' asserted my tormentor, producing a photograph. 'Look at this picture. It clearly shows your house with spaces outside.'

'But that was taken on another day,' I replied. The performance came to an abrupt end.

. . .

There was sometimes a scary lack of awareness of the basic facts of life. I was the husband in a domestic dispute and my barrister was investigating my case.

'You say you haven't had sexual relations with your wife for a year and yet you have a ten-month-old child?'

I admitted this was true.

'Well, I fail to see how that's possible.'

12 May 2003

It seems that the Brits have problems with their BigLaw firms only hiring from schools with snob appeal and not hiring or moving minorities up the ladder
When a lawyer has spent too much time at the bar

A British barrister showing for court drunk lends itself to this discussion of the treatment of this sort of occurence throughout the English speaking world from Ohio to New Zealand.

Skirmishes on the

9th Circuit


4th Circuit

As noted in How Appealing, the NY Times has an op-ed piece about Judge Kuhl's appointment to fill a position on the 9th Circuit:

"President Bush does not appear to be troubled by Carolyn Kuhl's way-out-of-the-mainstream judgment in . . . a number of [cases]. He's nominated her to a seat on the Ninth Circuit Court of Appeals, which is one step down from the Supreme Court."

Personally, I have problems with the idea that the NYTimes has any clue as to what the "mainstream" is. And the Ninth Circuit could probably use someone who can write an opinion that the federal supreme court might uphold.

"Democrats are fighting the nomination as part of their thankless task of trying to block at least the worst of Mr. Bush's judicial appointments."

As I've said before, I entirely support the Democrats' right to do this but if the Republicans play hardball too the Democrats have nothing to whine about (they will, but they have no grounds).

The Times-Dispatch provides more balanced observations about the appointment of Claude A. Allen:

Critics may be challenged to neatly classify Allen, whose political history and personality sometimes seem contradictory.

He is a Republican and an African-American who publicly espouses the "compassionate conservatism" of the Bush political platform. Yet he worked early in his career as a campaign aide for then-U.S. Sen. Jesse Helms in North Carolina, whose brand of conservatism carried brass knuckles and some of the South's segregationist past.

In an interview with The Times-Dispatch in January 1998, Allen said of Helms: "I looked at the issues I was told I shouldn't agree with him about, such as abortion and issues related to being black, the Voting Rights Act and women. They were not things I would agree with, [but] in many cases, he had a very logical position."

Michigan prosecutors stopped trying to force parents to subject there dying child to intrusive surgery.

Discussing the silliness of the Assault Weapons Ban

"In 1996, Washington Post columnist Charles Krauthammer, who favors banning gun possession by civilians, conceded that the arguments advanced by supporters of the "assault weapon" ban were "laughable." The "only real justification" for the law, he said, "is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation."

11 May 2003

Debating Judicial Nominations:

NY Times


Washington Times

How Appealing points out a NY Times op-ed which approves the judicial filibuster:

"The reason his nominees have met with resistance is not Democratic intransigence or a flawed rule. It is that many are far-right ideologues whose views offend most Americans. There is only one way to end the deadlock: compromise.
. . .
The only "crisis" at hand is that the White House is having trouble getting its most politically extreme nominees confirmed.
. . .
Senate Democrats have asked to work with the White House to identify qualified candidates who are acceptable to all sides. But so far, the White House has insisted on its right to name judges who are far outside the mainstream. If President Bush wants to end the impasse, he should take the Democrats up on their offer."

Of course the Washington Times has its own solution:

"Judicial appointments are increasingly in thrall to the very powerful interests that care the most about judges: those contributing disproportionate money and grass-roots effort to individual senators and political parties because they seek certain governmental support for their favorite issues. This is the special-interest model for judicial appointments today.
. . .
Mr. Estrada and Judge Owen graduated from elite law schools, demonstrated rigorous scholarship in their legal writing, and consequently received the American Bar Association's "well-qualified" designation, its highest judicial rating.
. . .
    To solve a national problem that White House Counsel Alberto Gonzalez now refers to as a judicial "vacancy crisis," the president should invoke a constitutional power that Senate minorities cannot dominate: his power under Article II, Section 2 to fill as necessary all judicial vacancies during a Senate recess. President Bush must use this power decisively to appoint Miguel Estrada, Judge Priscilla Owen, and all other nominees blocked by the Senate minority merely because it disagrees with the president's political philosophy.
. . .
[After that] President Bush would agree to not use this power again if Mr. Daschle and his brethren agree likewise to not obstruct the entire Senate from voting on all judicial nominees within three months of their approval by the Judiciary Committee.

I come down on the side of the Washington Times in this matter. Still, the Democrats are acting in a way that is distasteful but completely legitimate. While I do not believe that they are representing the will of the majority of the people they are representing their core constituency. However, if they are going to play political hardball they have to expect that others will play as well.

I would even one-up what the Washington Times offers. Make a recess appointment of Bork in the position which is marked for Estrada, require the vote on Owen before the vote on Estrada, then leave the Democrats with the choice of whether to leave Bork in place or vote. Bork is extremely qualified so there really can be no complaint that he can't do the job and, boy, wouldn't this be fun to watch.