31 July 2003

Once upon a time I attended Washington & Lee Law School with this gentleman. Now he's making headlines and getting improperly threatened by prosecutors.

Ahhh, the joys of being a criminal defense attorney.


Somebody Passed Me the Ball.

Lex Communis has put the ball into my court. As part of a more indepth discussion on the anti-Catholic standard being applied to Pryor he states:
On the other hand, if a juror expresses a willingness to follow the law and consider all options that the law permits, then bouncing the juror would be impermissible. For example, if a prosecutor made it his practice to use his peremptories on Catholic (or Quaker) jurors who had stated their willingness to follow the law, that practice could and would be challenged as a basis for obtaining a new trial. [I'll defer to CrimLaw on this point, though.]
Hmmm . . . The first thing which comes to mind is this quote from Darrow on whom to choose during voir dire:
An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not; his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.’

‘An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, be is never sure that he is right unless the great majority is against him.

‘The German is not so keen about individual rights except where they concern his own way of life. Liberty is not a theory. It is a way of living. He has not been among us long, his ways are fixed by his race, and his habits are still in the making. We need inquire no further. If he is a Catholic, then be loves music and art; he must be emotional, and will want to help you; give him a chance.

‘If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others. Unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

‘If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol and you do not want them on the jury, and the sooner they leave the better.

‘The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad, even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

‘Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both—in—one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt.

‘As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask them too many questions; keep them anyhow; especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist, with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And, do not, please, accept a prohibitionist: he is too solemn and holy and dyspeptic.

‘I have never experimented much with Christian Scientists; they are too serious for me.

“You may defy all the rest of the rules if you can get a man who laughs. Few things in this world are of enough importance to warrant considering them seriously. So, by all means, choose a man who laughs. A juror who laughs hates to find anyone guilty.
So, yes, religion has a long and venerable tradition of being called into question during jury selection.

Nowadays we don't question religion blatantly (at least not in the courts I practice in). We don't ask, "Are you a member of the Society of Friends or a Catholic?" Instead, in capital cases witherspooning is done to eliminate those who do not possess the "proper" belief in the death penalty which includes members of a number of different faiths. Like many have pointed out in the discussions concerning Pryor, it's not elimination just because you are a member of a certain religion - it's elimination because you dare to hold the beliefs of a certain religion. Depending on the makeup of a community a large percentage might be excluded by this method based upon religious beliefs and a result may be reached which is entirely out of sync with what an untainted jury of the vicinage might have done. An example might be Puerto Rico. Capital punishment is unconstitutional and the population - largely Catholic - vehemently stands in opposition to the death penalty. If the federal government decided to have a death penalty case there witherspooning would result in an entirely non-representative jury.

In non-capital cases prosecutors during voir dire will ask questions such as, "Does anyone have a religious or philosophical belief which requires them not to pass judgement on or punish others?"1 I pop up, object about the unconstitutionality of the question, the judge overrules me, and the prosecutor continues his questioning. Only once have I seen a juror actually answer yes to that question. The judge asked the normal rehabilitation questions and the juror swore he could fulfill his duties. The prosecution moved to strike for reason and, over my objection, the judge granted the strike2. However, I never got a chance to raise the issue on appeal because the case turned out favorably for my client.

So, yes, unfortunately, it is my experience that - even in the modern era - a religious person can be removed from a jury despite swearing that he can follow the court's instructions and the law.

1 In Virginia voir dire is done en masse. General questions are asked to the group with follow up for those who indicate that the question applies to them.

2 It's funny how rehab for the prosecutor is believable while rehab favoring the Defendant just never seems to work out.


Lawyer Troubles:

(1) You just aren't supposed to have sex with your client. And you especially aren't supposed to have sex with your client while he's in jail.

(2) A prosecutor caused a mistrial "by asking a Polk County sheriff's detective to testify about Carr's unwillingness to discuss the death of Robin Ridgeway." Anyone who's done even a little criminal work would realize that this is over the line so the public defender has asked for the judge to find that a new trial would be double jeopardy. From what little is in the article it sounds like he may be right. A prosecutorial mis-step, whether reckless or calculated, should probably lead to double jeopardy in just about any case unless it can somehow be tied to something the Defense has done.


Police and the Law:

(1) An article decrying the tendency of the media to report things about police negatively and denouncing the methods used to reach those criticisms. I agree that it is darn near impossible to find positive stories about the police (other than the occasional puff piece about someone retiring). I know; when I started noting stories here about the things going wrong in various police agencies I tried to look for positive stories to balance them out and found almost nothing. Not that I think it means that the majority of police are acting improperly - quite the contrary, I think most officers are out there busting their bums trying to do the right thing. On the other hand, I don't think it is necessarily indicative of Leftish bias either - I think it just makes a sensational story when a policeman does something wrong and it sells papers or keeps people tuned to their televisions.

And along that line -

(2) Something interesting must be going on at Harvard. The campus police have refused to give the campus newspaper their records for the last several years. The newspaper, with funding/help from the ACLU, is suing.

(3) Two police officers attack a 59 year old man with their batons and pepper spray.

(4) 35 pardons are granted because an officer was found to have committed perjury.

(5) Officers hurt a crippled man.

(6) In the case where an officer threw a young man against the car and hit him the jury deadlocked. The prosecutor says there will be a retrial.



(1) The use of the right to jury is not being exercised as often in Iowa.

(2) Jurors screw up and everbody has to start over.


Sex Cases:

(1) The DA will not pursue charges of rape against a UT player.

(2) More on the British slave trade which is providing labor and sex.

(3) If a female decides at any moment to withdraw her consent and you don't stop on a dime - it's rape. I would be curious to know if this actually causes any change.

(4) This guy convinced a girl to accuse her father of sexual abuse so that he could take her off and abuse her himself.


I didn't even know that train robbers still existed. I wonder if they wore cowboy hats and bandanas over their faces.


And Today's Nominee for the Smartest Crook in the World is . . .



Last night Officer Douglas E. Wendel was killed in the line of duty in the city of Richmond. The cowards shot him from behind without even giving him a chance to defend himself.

The City has offered a $10,000 reward for the capture of the murderer.


In Tennessee thay apparently have screwed up laws involving the sentencing of teachers who have sexual relations with students.


As long as you use the name "Unknownuser" and claim to be from another country, you can work with the FBI, funnel them illegally obtained information, and the 4th Circuit will rule that you are not a government agent.

I have to wonder if anyone has made an attempt to track this guy's address to see who he actually is. For all we know he's a sheriff's deputy somewhere in Wyoming.


Scam $74 million, live the high life, go to prison for 30 years.


An escape attempt foiled.

(Prison News)

(1) A jail prisoner attacks a guard and tries to escape. This is just dumb. I have yet to go to a jail where there isn't at least one door which has to be opened by someone locked in a room the inmates can't get into. The deputies probably could have just let him run until he got to that door and realized the keys he had stolen weren't going to open it.

(2) Well, at least it's better than Michigan where prisoners are allowed their freedom and then told "oops, we made a mistake" and put back behind bars.


Death Cases:

(1) Remember all those cases where you were defending an indigent and couldn't get an independent expert because the government expert was supposedly neutral? Yes, she was paid by the same government who pays the prosecutor and you've never seen her testify - not one single time - to anything that wasn't damaging to the Defense but she'll proclaim her neutrality loudly from the witness stand and the judge will back her. Well here's what happens if an expert finds something pro-Defendant. However, there is evidence that in States other than Virginia this might not be the way things are handled (at least if the expert's screw up leads to a police officer being falsely accused of murder).

(2) Just for a bit of perspective. If you beat an elderly couple to death Oklahoma will kill you. If you arrange for your buddy's ex to come over so he can kill her and then himself Iowa will send you to prison for life. If you pour scalding water on your maid for not understanding your language and she dies from the burns, Saudi Arabia will send you to prison for four years. Of course, I might be willing to spend a life in prison in the US rather than 4 years in a Saudi prison - my life expectancy might be longer.

(3) Eric Robert Rudolph's trial has been put off until 2004 but no specific date has been set.

(4) A torso found in the Thames leads to the smashing of a ring of people selling African children.

(5) In Edinburgh police found a partially decomposed body, in a suitcase, in the water.
Detectives said they were treating the death of the victim, who was described as a local man, as suspicious.
Hmmmm . . . I can't imagine why . . .

(6) Sniper news: They are trying hard to match the confession Malvo gave to his guard with reality. Here's an Arizona paper's report on the Tucson police have done.

(7) The judge in the Lentz case has ordered him released from jail.

(8) In the NC Peterson case another State forensic witness has been made to look bad. It appears as though someone used luminol around the blood splatters but either didn't tell the expert or he won't admit it. Not sure if that will really score any points with the jury but, once again, it makes the prosecution look bad.


30 July 2003


A trooper pursues and issues speeding tickets to 19 Hell's Angels. Now that's guts.


Wow! Never thought I'd see a San Fran paper in favor of States' rights.

Of course, the right in question is the right to smoke marijuana.

Before I get the numerous, though always polite, e-mails about how wrong I am about marijuana let me say this: I think the marijuana laws are stupid. It's like prohibition was for alcohol or making alcohol illegal is currently for college students; it romanticizes a relatively harmless drug in which people do not see the harm and leads to a willingness to ignore the law.

On the other hand, for years I've heard arguments for legalization because of all the wonderful uses of hemp which used to be summarized pretty well by the good ol' hemp shirt (thanks, but I'll stick to cotton). Now I hear all the time that marijuana is the new wonder cure - it is the new laudanum. Does marijuana have valid medical uses? Almost undoubtedly. Can it do everything claimed? Maybe. Are there better suited drugs out there? Not sure.

There's the rub. I don't know. And I don't trust the people who keep telling me how wonderful it is1. It's not that they are evil or stupid; it's that I very, very, very strongly suspect that they have an ulterior motive (or at the very least they strongly desire to justify). I see healthy, pro-marijuana adults arguing this point behind a screen of very desperate, very ill people who are willing to grasp at any straw. If you were to actually begin manufacturing laudanum again you could probably get these people to use it (and, who knows, it might help with the pain).

Since I know I'll get several e-mails from this, can some of you who are pro-use tell me why it has not been developed into pill form2? For instance, my understanding is that aspirin was originally tree bark but I no longer have to chew on bark or eat willow leaves to get curative effects. Have there been attempts to develop the same thing for the useful ingredients in marijuana so that dosage, contaminants, etc can be controlled? And the argument for legal use would ring much truer if it was about prescribed pills rather than smoking.

1 No matter how many studies and statistics are cited in pages like this what keeps popping into my mind is the old Twain quote that "there are three kinds of lies: lies, damned lies and statistics."

2 Yes, thanks for the info, but I do already know about brownies.


You can do a lot of stupid things when you're a kid but if you steal a bus you will end up in front of a judge.


29 July 2003

Minnesota Deals With the Batson Rule:

Actually, after having read the article, I come to the conclusion that not much is going on here. Apparently the Defense tried to use a peremptory strike to remove a black lady from the jury who " had had substantial exposure to the police as the daughter of a police officer and former trainee at the police academy." The prosecution raised a Batson objection and the court disallowed the strike.

The trial court's decision is hard to defend. That much exposure to police is adequate to make a motion for a strike for cause. And surely it is reason enough that a peremptory strike must be allowed. Heck, I would love to be able to justify my peremptory strikes that well.

Anyway, by not striking the juror the judge denied the Defendant a jury he could have confidence in (as much as is allowed by law) and therefore the Supreme Court is correct in its decision that there must be a retrial.


Death Cases:

(1) The 4th Circuit has absolutely no sympathy for a cop killer.

(2) "The death penalty shall not exist." That's in Puerto Rico's constitution. Not that the federal government cares as it tramples all over the territory.

(3) A death row inmate is exonerated. Or at least not able to be proven guilty.

(4) Two kids get drunk, stupid, and macho. They start exchanging chest punches. One of them dies; the other goes to jail with a manslaughter charge.

(5) In order to be killed by the government it has to prove you are competent. Because, goodness knows, we all want to spend thousands of dollars bringing someone back to mental health just so we can terrorize him with the prospect of his impending death and then kill him.


"In a lengthy ruling that allowed 10 defendants to walk free and left the taxpayer to foot an enormous legal bill, a judge branded the "honeypot" operation as nothing less than "state-created crime". He said it was "massively illegal", and, in the case of two suspects, amounted to entrapment."



In England they can force you to cooperate in investigations against you. However, "the European Court of Human Rights [has] ruled that any answers given under compulsory questioning cannot normally be used at the defendant’s trial." It looks as though this might cause a bit of a problem for prosecutors.


In the Prisons:

(1) The number of people in prison keeps increasing. Virginia's already come up with its own solution to this problem. It built so many prisons that the Commonwealth had to change one of its supermaxes into an ordinary prison and has been importing prisoners from other States to fill the empty bunks. There'll always be space for more prisoners here.

(2) Segregation by race is allowed in prisons.


In the Courts:

(1) In California jury instructions are being changed from "Failure of recollection is common. Innocent misrecollection is not uncommon" to "People often forget things or make mistakes in what they remember." All together, jury instructions which a layman are a good thing. However, the article notes that in serious cases the old instructions will be used because they have been tested in the appellate courts. In other words, understandable instructions will be given in a shoplifting trial while a 75 page morass of legal babble which the lawyers barely understand will be given to juries in a death penalty case.

Found via The Legal Reader.

(2) A disaster of an ethical/political mess has led to all the members of the Ohio Supreme Court recusing themselves.

(3) The feds accuse. In Mississippi bribery charges have reached as high as the Supreme Court.


When you are running down the street changing clothes you won't outrun the guy chasing you.

Found via The Obscure Store.


Someone Infringed on My Name!!!

Actually, I don't so much mind that someone else has the same nickname but it disturbing how badly he has screwed up.
Shapiro might be bullet-proof from future judgments, according to court documents. In a letter Smith wrote in the Dimon case, he said Shapiro’s firm no longer has malpractice insurance, has $6 million in liens against it, and “ has no other assets” of value in New York.
Found via My Shingle.


In England the government is looking to seize regulation of lawyers from lawyers and put it under a government official - because, as we all know, government bodies and regulations are always the most efficient way to go.


Ex post facto - a bastion of the rule of law.


Richmond is the least dangerous area for street crime - in London.


A drunk who left his baby in the car when he fled the scene of an accident gets a sentence which is entirely too lenient.


28 July 2003

Virginia's Attorney General has stated that he thinks judges should have to justify their actions if they lessen a sentence reccomended by the jury.

Considering the general inequities of jury sentencing in Virginia, I think that would be interesting. In general, Defendants in Virginia are severely punished when they take a jury trial (unless of course they are found not guilty). Once the sentencing phase has begun, jurors are not provided with the sentencing recommendations or background investigation that judges receive. They cannot suspend time1, or send a Defendant to a rehab program or take a case under advisement. As well, jurors are neither versed in the law nor exposed often to its enforcement, thus when the Defendant's record is read - in high dudgeon, by a prosecutor who sees far worse every day - they are shocked2. Consequently, juries strongly tend toward higher sentences.

How, you ask, does this not run afoul of the right of a jury trial as guaranteed in both the federal and Virginia constitutions? Well, the jury doesn't get the last word. The judge actually has the ability to suspend all or part of the jury's sentence. As I remember it - and it has been some time since I researched the matter - the Virginia Courts Appellate have actually interpreted this as making the judge the sentencer. And of course, the judge has all the resources available at the sentencing hearing which he would have at any sentencing hearing.

Despite all of this a judge (at least where I practice) will almost never choose the sentencing guidelines over the sentence which has been handed down by the jury. The attitude seems to be that you took your chances now you're stuck with the outcome, even if it is substantially harsher; some of the less circumspect judges will even say as much during the sentencing. Despite the fact that jury trials are supposed to be the default, there is a strong incentive on the part of Circuit Court judges to discourage them. If 20-30 people a term were to decide to invoke their right to a jury it would quickly grind many courthouses to a halt3.

How, you ask, does this not run afoul of the right of a jury trial as guaranteed in both the federal and Virginia constitutions? Prove it. All I have is anecdotal evidence and that's just not going to cut it in either the trial court or the courts appellate. Of course, if anyone out there has a couple hundred thousand and wants to survey the courts across Virginia providing a comprehensive study of comparative sentencing and provide me with an expert for trial, I'll be happy to raise the issue in the next appropriate case.

What - no takers?

Basically, the decision to take a jury is often almost suicidally stupid, even if you are innocent and standing in front of Judge Smith who hasn't found anyone not guilty in five years.

What would solve all this? (1) Remove sentencing from the realm of the jury or (2) at least give the jury the ability to suspend time and a copy of the sentence recommendation before they go back to deliberate. Personally, as a great fan of the common sense found in jurors, I favor the second solution. However, I doubt either will solution will be adopted anytime soon.

1 This is particularly nasty. Starting at Class 4 felonies there are mandatory sentences a great number of which are recommended (in whole or part) for suspension under the guidelines.

2 I've seen a prosecutor stand before jurors, voice aquiver with rage, speaking of this evil man with three prior felony "habitual offender" convictions while the jurors sat in horror. Of course when I stood up and explained that that meant being convicted three times of "felony driving when Virginia told you not to" it took the edge off and I think made the jury mistrust the prosecutor some (at least my client got one of the rare sentences less than a judge would have handed down).

3 Not that I've had any judge say this to me. I just note it in passing.


Homicide Cases:

(1) The Bee's a'Buzzin': The Danville Register Bee is taking the absolutely shocking position of decrying a murder for insurance proceeds.

(2) A detective is caught stealing from his own police force and it brings the verdict of a major murder case into question.

(3) If you commit a triple homicde it might have some effect on your career.


A Republican Delegate has been fighting to get a woman released on parole.
Black believes 18 years in prison is enough for a series of bank robberies in which no one was injured and no weapon was displayed.
The woman had no prior record but was convicted under the three time violent felon law becaue her crimes were spread over two months, enough to count each as a seperate occurence.


Albemarle county has filed false report charges against citizens but not against a former deputy whose claim to have been shot by a mysterious black male was withdrawn. The difference? Apparently the deputy knew enough to keep his mouth shut.


Okay class, today's lesson is that if police pull up in a white Lexus, they probably aren't actually police.


The big question is whether gang activity is down in Lynchburg because of what's been done by the police and community or just because of all the rain Virginia's had this year.


Unable to fill both of its supermax prisons, Virginia has converted Wallens Ridge into a regular prison. I particularly like the barbed wire in the classrooms - sort of reinforces the prison milieu in case the prisoners forget where they are.


27 July 2003

Of Interest in the Blawgosphere:

(1) Yes, thank ya'll for your interest, I have not been posting on Kobe much. I look forward to it going to trial to actually sort out all the garbage and give us some substantive information.

If you want Kobe info I suggest you check The Southern California Law Blog which is keeping a pretty close eye on things.

(2) I think I've posted about as much as I should on the Pryor nomination. It's not really criminal so it doesn't fit well here. I just got swept up when the observations I was making to the committee hearing were also noticed by others.

If you want everything on the Pryor nomination, I suggest Southern Appeal who's following it indepth.

(3) Just in time for the Bar exam, Matt over at Stop the Bleating! found God.

(4) Donald, at All Deliberate Speed, professes his unrequited crush on Ann Coulter just in time before he leaves the blawgosphere.

We'll miss the well thought out blawg and I wish him well. All I ask is that he do me the same favor I asked of Orin Kerr when he left Volokh.


Senate Democrats have been called on their positions which deny Catholics who actually believe and espouse Church doctrine a position in the judiciary.1

Let's be clear here - Pryor is not being opposed because he has acted on his beliefs. Pryor has not followed Church doctrine to the exclusion of constitutional mandate. In fact, had he done so he would have given a much more expansive interpretation of the Alabama anti partial-birth abortion law. He did not. He tried to bring the statute within the mandates of the constitution not the mandates of the Church.

This is a case of the pain being so great because the arrow has struck too close to home. Nominal Catholics, as demonstrated by Senator Richard J. Durbin, distance themselves as far as they can from Church positions which are unpopular to the Left2. The question which hangs in the air is what is the difference in particular between Durbin and Pryor? Both claim to believe in doctrine but neither has followed it to the exclusion of other obligations. The difference? Pryor doesn't make the law and is honest about his belief that abortions have killed unborn babies. And because of that he will not become a federal judge.

1 Although the ads have actually been run in Republican areas, they clearly target the Democratic obstructionism.

2 This is a bunch of garbage: "Mr. Durbin [is] an Illinois Democrat who personally opposes abortion but backs abortion rights." As a political expediency, I can see remaining neutral - abstaining from votes on abortion matters. But to vote in favor of abortion is to act in direct in contradiction of what you profess, as a Catholic, to believe are Church Laws which reflect the Will of God.


Does Roanoke have gangs or not? It probably depends on how you define a gang. If it's a group who hang around in a particular neighborhood and has members who regularly break the law - Yes. If are looking for an organization "which has as one of its primary objectives or activities the commission of one or more predicate criminal acts" and/or a heirarchy wherein there is a boss controlling the acts of others - probably not.

Some places will call any group of kids that hang around in a neighborhood a gang. Others are very proud of the fact that there aren't any gangs in their city. I was in a city last week talking to an officer who took the Roanoke position; he told me that the city didn't have any gangs, all it had were groups of neighborhood kids who hang around and caused trouble.

I think Kilgore's program will be badly needed in some areas but I also think it will probably cause places that are looking for funds to classify a lot of kids who are hanging around as gangsters.


Terrorism Cases:

(1) The computer science professor who is charged with supporting terrorism has gotten the judge to fire his court-appointed attorneys. He is living on the prayer that many a Defendant has, that someone will get him "a paid attorney." It hasn't happened yet and the judge tried hard to dissuade him; the judge pointed out that if the money doesn't come thru the professor will have to defend himself. The professor "admitted he is not versed in racketeering and conspiracy laws, federal sentencing guidelines or court rules" but said he was a quick study and he was confident he could learn (from jail, with limited access to a law library).

I feel sorry for the judge - that case is now a disaster in progress. Short of other attorneys stepping forward all he can really do is watch the train wreck as experienced prosecutors run right over a pro se Defendant.

(2) The House has voted to stop "sneak-and-peek" warrants and Justice is not happy.
Justice officials are notably upset about new advertisements from the American Civil Liberties Union that include the assertion the law "allows government agents to secretly search your house and not even tell you."
That's because the truth hurts. Do I think Justice currently intends to seriously abuse this law? No. Do I think that if this becomes settled law it will fall into the "give an inch take a mile" syndrome which is so common in law enforcement? Yes. They'll stretch it just a little bit to get that member of Ga'amiat Islamia, then just a little further to get that 3d generation Irish-American mob boss who's supporting the IRA, then just a little further to get that pharmacist who hasn't been reporting income from selling drugs to the mob boss' underling which ended up in a deal for guns that went to the IRA, then just a little further . . .

(3) The NYTimes parses the decision I cited to here.


This probably ain't a crime but it is cheatin'

The Twins used to manipulate the air flow in their ballfield and tests seem to show that it can make a seven foot difference in how far the ball flies.

And you thought the only cheating in baseball involved spitballs.


The prosecutor in San Fran has admitted to contact with grand jurors which could have only one purpose - to illegally influence the grand jury to indict police officers.


Utah v. a Polygamist:
LuAnn Kingston said Jeremy Kingston had three wives and 17 children when he married her [at the ripe old age of 15]. She told investigators that her father-in-law, Joseph Ortell Kingston, is her half brother, making her ex-husband a nephew as well as a cousin. Authorities have said blood tests previously proved that the mothers of Jeremy and LuAnn Kingston were sisters.
You know, I grew up in Kentucky and people made fun of us for our familial relations but I never met anyone with a family that screwed up.


Vigilantes at the wrong house.


Death Cases:

(1) In England you can kill generations of a single family and apparently get life with parole.

(2) A court in Minnesota denies a Defendant the use of a "battered child syndrome" defense.


Politics and Crime, From Right to Left.


The World's Longest Smoke Break.

In Kentucky a man stepped out for a smoke break while the jury was deliberating but then he just kept on stepping.


In Florida an old scam is being used against elderly Hispanics.


A street racing problem in the Twin Cities.


South Africa: Prison Guards, police, and commandos went into the prison and took fingerprints looking for cold hits.


I just tripped over this: An Arizona newspaper's website has an entire page just for Justice O'Connor.


The IRS v. the Quakers.

The IRS will come after you even if it is trying to make you violate your religious beliefs.


26 July 2003

Worried About His Soul?

A judge sentenced three nuns to 2 1/2 years each for their anti-war activities. The mandatory federal guidelines had required a minimum of 6 years each.


The police are trying something pretty innovative in Lowell, Mass. Unfortunately, it seems to violate the Establishment Clause: police are sending gang-members/runaways to "yellow-robed monk[s] tr[ying] to teach them how to be good students and exemplary Buddhists."


Here we go again: The Feds Arrest Another Member of Richmond's City Council.

It looks like they worked pretty dawgone hard to get her too. If they keep arresting all the interesting people on the Council it won't be any fun to watch the Council meetings on public TV anymore.


You know your case is in trouble when, even in the current atmosphere, you cannot convince a judge that the "terrorists" you are charging are so dangerous or likely to flee that they should not be given bond.


Rape Cases:

(1) A police officer has had his rape conviction overturned because the judge excluded evidence that the prosecutor he is accused of raping had been making advances toward him which he had been rebuffing because of his marriage.

(2) A Florida prosecutor appears ready to fight DNA results in a rape case because "the identification of McKinley by the girl and by a police officer at the scene in Homestead, south of Miami, should override the DNA test results." Here's a thumbnail sketch of the argument:
[The prosecutor] said the DNA test results do not exonerate McKinley because of two factors explained to him by the 11-year-old girl. She said she had engaged in consensual sex the night before and that McKinley did not ejaculate when he raped her. Thus, the semen was from someone other than her attacker, Kastrenakes said.

But Scheck, known for helping to successfully defend O.J. Simpson against murder charges, challenged Kastrenakes' argument. "He took the position at trial that the semen came from McKinley and was the result of recent intercourse," Scheck said. "He can't turn around now and say otherwise."

Scheck said that if the girl had consensual sex the day before the rape, the state needs to get a DNA sample from him to see whether his DNA matches the semen recovered by investigators. He said there was no testimony at trial about whether the girl had sex the day before the alleged rape.

(3) Satan worshipper rapes a 12 year old girl at least 4 times, gets 48 years in prison. Can't think of a more worthy individual.


The use of DNA to track marijuana to its source.


Just because you are a bank robber doesn't mean you can't have style.


Death Law This Week:

(1) Wow! Everybody (except the press) wants the Scott Peterson preliminary hearing closed to the public. Other news in the Ca. Peterson case: The Defense's experts will have an opportunity to examine the bodies. No big surprise.

(2) If you know something about a murder in D.C. it's time to fess up because you can get $25,000 per homicide you provide the solution for.

(3) Swisher, the man whom governor Warner tortured by extending his life and then setting as a requirement an appeal which the governor knew had already rejected, was killed Tuesday. Swisher's not one who elicits any sympathy but what the governor did was just wrong.

(4) In the NC Peterson case a witness tells of the items the police took to investigate but cannot explain why certain bloody items were not taken and the next day another witness testifies so well it leads to suspicions that he knew the questions the Defense has been asking on cross. You'd think they'd have moved Heaven and Earth to get pictures of those footprints since they would seem to be damning evidence.

While, to date, I think the prosecution has been somewhat lacking, at this point it seems to be building momentum.

(5) How can you starve your child to death and not be convicted of murder? These peoples' attorneys must have worked some sort of miracle to hang that jury.

(6) A lady convicted of killing a two year old has been released because improper evidence was allowed at her trial.

(7) Teens:
(A) In Roanoke one girl's life is extinguished and another girl's life is destroyed. There was no happy ending here no matter what the final outcome.
(B) In Milwaukee kids who were involved in homicide by mob have been sentenced.

(8) If you murder someone in Virginia you will be found. Even if you fled to Russia.

(9) A former prosecutor urges DNA testing in a capital case he prosecuted.

(10) A federal court removes the lawyers on a death penalty appeal and then puts off the execution while the new attorney tries to come up to speed.

(11) Hmmm . . . In England they aren't allowed to publish the reason for a murder's remand until after the trial has been completed.

(12) Things Malvo told the guards.

(13) In Texas they kill hitmen; in Virginia they just can't seem to make it stick (or maybe they just can't find the right person).


Clam Up Kobe:

The judge has intervened to limit the war of words in this week's "Trial of the Century."


25 July 2003

Death Cases & Strangeness:

(1) One of the characters' names in T3 was originally Scott Peterson.

(2) Gideon's Promise points us to perhaps one of the greatest deterrents to committing a capital offense.


Judicial Opening: Catholics Need Not Apply.

Sadly, I think this is true. If you are more than nominally Catholic you cannot be confirmed because you follow Church doctrine. And, more's the sorrow, those who claim your same Church (but not its core beliefs) will be well represented among those who prevent your confirmation1.

What's Pryor's record as it pertains to the death penalty? The Church abhors the death penalty as well (pro-life = moment of conception until death at a time chosen by God, not man). Has Pryor done anything which indicates that he follows doctrine rather than death?

1 And let's be absolutely clear here, an anti-abortion stance is clearly the unarguable doctrine of the Church. I've seen more argument over whether women should be priests, whether priests should be allowed to marry and even if the Church's doctrine on homosexuals is correct. I've heard unabashed abortion opposition from the pulpit for years (even when the Army had me stationed out in California south of San Fran).


If you're a Warlock and the police arrest you can you claim religious persecution?


If you throw a dog into traffic you are responsible if it is "hit three or four times and then run over by a white minivan" even if the dog made it to the other side of the street and then wandered back into traffic.
"Blaming the victim is reprehensible, no matter how many legs the victim has."

Florida is restoring the right to vote to 125,000 convicted felons.
"It's a drop in the bucket," Berg said. "The state needs to get rid of this antiquated, Jim Crow system."
Amen. I understand not letting felons have a firearm (or at least violent felons) but not allowing them to vote? We have the same system set up in Virginia and it disturbs me; it doesn't bother many of my clients1 but it disturbs me.

1 It has been my experience that when I tell my clients that if they plead guilty to the felony they will lose their right to vote, hold office and ever even hold a firearm they are most concerned about how much time they have to serve. When your client asks you "will I get out today if I plead guilty?" and the answer is yes, quite often that is all he wants to hear. I've even had guys whom I've told that we will almost certainly win their cases order me to take a deal if I can guarantee that they will get out of jail that day (frustrating).


The Law and Law Enforcement:

(1) The jury is considering its verdict in the case where an officer threw a kid up against his vehicle and punched him.

(2) The officers who got in a fight after they tried to take a bag of fajitas from some men (while off duty) have had their case dropped. But it's only been done so that the prosecutor can go back and get clean indictments.
"This is great for us," said Jim Collins, attorney for [the acting police chief's son]. "They spent months with a grand jury for nothing. It shows this grand jury was so flawed they had to go back to step one."

(3) A confrontation between judges and police over whether the police should be allowed to bring firearms into county courthouses. There really is no reason for an officer to have his pistol with him in the courtroom. The (Virginia) county court wherein I do most of my work has this rule and all it means is that the police lock their weapons in the trunk of their cars before they come into court (you know, the same place they already store their shotguns / rifles). On the other hand, I'm not sure what the big problem is with officers having their pistols with them either.


24 July 2003

Yesterday I got a few mysterious hits from Lexis. For a moment there I thought I must have written something profound and legally innovative. Of course, I couldn't think what the heck it might have been but I was starting to get a big head for a moment.

Then I checked my e-mail and it turns out that the authors of blueblanketblog and Statutory Construction Zone (people who actually have important thoughts) had been kind enough to cite my blawg in an actual article in the Journal of Appellate Practice & Process (which I cannot seem to link to).

Thanks for the free publicity and I hope those who find their way here from it find something worthy hereinafter.


False Reports:

(1) In Albermarle county they are having a rash of false rape reports.

(2) In L.A. police are limiting their response to alarms because too many turn out to be false.


The Law and Law Enforcement:

(1) The judge didn't like a verdict against an ex-trooper and his former employer so he just threw it out.

(2) In San Fran a police captain transferred while there is an investigation as to whether she ordered a police officer not to be investigated as a suspect.

(3) In L.A. a police officer pleads guilty to being a part of a prostitution ring.

(4) In Roanoke a tiff over the stationing of police officers in schools - which appears to have been set off by an officer whistle-blowing - has been reported on here and also here.

(5) You cannot arrest an attorney for obstruction just because he offers to represent someone you've pulled over and then tells that person to not cooperate in your investigation. Great! A whole new source of clients. I guess I can start prowling up and down Jeff Davis highway1 at 2 a.m. in the morning and just pull up on traffic stops to offer my services. They're going to end up being clients anyway, why not be proactive?

(6) A prison guard has been charged with robbing banks.

1 Yep, for those of ya'll who are Yankees, we do have a major highway named after the President of the Confederacy. We also have big monuments to all the Generals and the fallen soldiers. This is, after all, the city that was burnt to the ground at the end of The War of Northern Aggression.


DUI - Drug Matters:

(1) An article which is upset because a man has the right not to participate in gathering DUI evidence against himself without having criminal sanctions.

(2) The California Supreme Court has decided that if you were convicted before the drug rehab statute went into effect you're just out of luck. This article wonders at the fact that the only dissenter was a "conservative."

(3) A man who was caught throwing 20 lbs of marijuana out a window was given a break in his plea agreement probably because he is the star witness in a case where some police beat him up because he wouldn't give them his fajitas.



In Britain they sending judges to school and mulling over judging the judges. In the U.S.? Our judges are worrying about the color of their robes (actually, once you get past that this is a pretty good article comparing the traditional behavior in different courts).


Terrorism Cases:

(1) A district court judge has dismissed two counts because an anti-terrorist statute is unconstitutionally vague. You cannot tell a judge that something isn't vague because "you know it when you see it." AT least you can't if it's not an obscenity case.

(2) The court has released some of Moussaoui's motions.


Abduction / Kidnapping Offenses:

(1) In Alexandria a federal judge throws out a jury conviction because the prosecution didn't show a scintilla of evidence of kidnapping.

(2) A man who abducted a 9 year old girl and assaulted her may not be tried because he may have mental defect. No. Really?


Race and the Law:

(1) In Massachusetts whether you get a ticket or not often depends on your race and sex.

(2) Defraud the IRS of $500,000 by claiming reparations for slavery and the jury will convict no matter how upset it is with the IRS for screwing up so badly.


23 July 2003

If you moon the jury it won't take them too long to convict you.


The European Court of Human Rights Slaps at the British Ex Parte System:

The European Court ruled that the British courts have inadequate protections in allowing ex parte proceedings to determine if the prosecution can deny evidence from the Defense. It seems correct considering that in at least one of the cases mentioned the police informed the judge ex parte that the Defendant had a history of drug dealing despite the fact he had no convictions and the Defendant never knew about the claim and therefore could not counter it during the proceedings (ain't it a great system when you can poison the well without your opponent even knowing that anything's wrong?).


"Restorative justice" is a new program across the pond. Under it the whole "conviction" thing can be avoided if you just apologize and pay restitution. Both Defendant and "victim" have to agree to it but I know this would have stopped a fair number of my cases in their tracks. I wonder if this will ever be exported to the States.


Your Government at Work:

(1) The Mayor of Virgilinia, Virginia was arrested because he was trying to keep the local school from being closed.

(2) The County Commissioner of Revenue of Craig County, Virginia gave up her job in order to keep from being convicted of felony forgery and check charges.

(3) And, lest ye think these things only happen in Virginia, in NC they are sorting out a mess involving illegal campaign contributions.


How good can a porn be if a male juror falls asleep during it?


Animal Abuse Cases:

(1) The San Fransisco cat-lady has made bond and failed to show up on her court date yet again (3d time). The judge has again ordered her arrested. I wonder if he'll set a bond this time.

(2) The man in Harrisonburg, Virginia who starved his own cattle (70 head) was sentenced to 6 months in jail.


An article fawning over the forcing of non-convicted persons to turn over their DNA so the government can check to see if they might have been involved in a crime in the past for which they are not charged.

The writer seems to have no real world knowledge about how the system actually works. He equates DNA gathered for cold-hits with fingerprinting. However, the reason for fingerprinting is to identify the person who has come in who might be giving a false name. It doesn't always work but it is a useful tool for officers dealing with frequent flyers who can lie convincingly about who they are. DNA isn't being used in that manner. The reason it is being taken is to find out if maybe, by chance the person arrested might be connected with some crime that was committed in the past (of which the police lack knowledge or sufficient current evidence).

These are very different reasons for undertaking these two activities. The first has a valid administrative purpose. The second serves no purpose other than to try to manufacture evidence where it does not exist. DNA testing may be valid after conviction (something which still bothers me) but prior to conviction it serves no purpose (unless involved in the actual case at hand). At least it serves no purpose if its only going to be held in stasis and destroyed if the defendant is not convicted. I suspect that this is not the way it will work in real life. The words "officer's good faith reliance on the administrator's error in processing early" just keep flashing thru my head.

And the author just blows off the possibility that law enforcement might manipulate the system in order to get DNA. Anyone who has dealt with the numerous pretext stops which occur daily and are ignored by our courts knows that law enforcement will use any tools given to them by the courts and legislatures to stretch the law to its limits to get the bad guy1.

1 As always I add the caveat that I do not blame the officers for this; I blame the courts which encourage this kind of activity by refusing to restrain it.


I guess you just cannot give your clients legal advise that the federal tax system is optional.


Don't escape forom a courtroom in Yerington, Nevada because they don't mess around. 35 officers, a K-9 unit, and a helicopter searched until they found this guy 5 hours later.

Gotta admit I've never had someone do this. I've had clients refuse to come to court or dissapear before their case was called. I've even had clients fuss at the judge after getting their sentence. But nobody who went the extra mile like this. I foresee a much longer stay in jail for this gentleman after the contempt charge and the escape charge are tacked on.


In Florida it's no longer a crime to wear police equipment.

I'm sure this ruling brings sighs of relief from strippers across the State.


22 July 2003

Death Cases:

(1) Imprisoned for life, paroled, became a solicitor, committed arson and attempted murder, went back to prison for life and thus we see the cycle completed.

(2) Three men break into your farmhouse, police response is hours away and your family is home. The American response? Shoot 'em dead. The British response? Go back to sleep, because if you do anything to harm these poor fellows we shall send you to prison. And, of course, when you get out the burglars' friends will threaten you so that you will have to go into hiding (because you wouldn't want go back to jail for shooting some thug who showed up with a knife or gun).

(3) Congress is trying to pass a "fetal homicide" bill. Many States already have this sort of statute. Is this the sort of evolution in the nation that justifies changes in the constitution (such as mentally retarded people not being eligible for the death penalty)? It would seem pro-abortion advocates are worried it is:
"The real purpose of the law is to define a fetus at any stage of development as a person," said Rep. Jerrold Nadler, D-N.Y. "That undermines Roe v. Wade."
(4) In the NC Peterson case the prosecution has gone to the tried and true tactic of showing the jury a disgusting crime scene video (twice). Score on for the prosecution. However, the prosecutor's crime scene technician's testimony seemed to be a draw. He minimized the actions of Peterson when he ran over to his wife on the floor but then testified about how Peterson's son had to pull him over to a couch. He also apparently contradicted other police officers who testified that the reason they were suspicious was that the blood on Peterson's clothes was dry (he said they were moist). It feels like this day probably came out slightly in the prosecution's favor (because you cannot underestimate the emotional impact of seeing that video twice).

(5) Malvo's attorneys are arguing that the prosecution should have to account for every penny it spends, just like the Defense does. They are stating that the fact that federal money is coming in skewing the system and that they should be entitled to equal funding (or at least more than they are getting).
"In effect, the defendant is being prosecuted by both the federal government and the Commonwealth of Virginia," wrote lawyers Michael Arif and Craig Cooley. "Therefore, fundamental fairness and due process would require that the defendant be allowed access to federal funding for his defense," including the use of mental health experts, other expert witnesses and the costs of transporting and housing defense witnesses.
Very interesting. If they win it holds all sorts of implications for indigent Defendants because of all those law enforcement and prosecution programs which are backed by federal funds. Of course, being of necessity a realist and of the opinion that judges can foresee implications as well as I can, I very much doubt the motion will be granted.


It's pled!

I have readed many an article which runned under the headline "Defendant Pleaded Guilty." My junior high English teacher is somewhere out there pitching a hissy-fit. She teached us about these things called irregular verbs. And plead - pled is definitely one of the verbs she teached us. In fact I never see-ed "pleaded" until I go-ed to law school.

Of course I was also teached judgement and impracticle rather than judgment and impracticable, so I may have fighted a losing battle here.


"In pre-trial motion, home decorating expert's attorneys squawk about process leading to indictment."


Well, I can honestly say that I've never had client called back before a judge for violating his probation thru the use of steroids.


A convicted pedophile used his adult son's ss# to become a foster parent. But the kid turned him in after finding child-porn on his computer.


Iowa is making efforts to keep minorities out of jail.


If you are an autopsy assistant you cannot take your work home with you. Or at least not legally.


The next time you walk into a courtroom and think how you could never get into the drunken brawls etc. that "those people" do remember this: our congressional representatives, who are (at least putatively) persons of high moral character, were engaging in the same sort of childish behavior which one sees tried daily in general district court - and they weren't even drinking.


Terror and the Legal System:

(1) Proof that the feds aren't 100% focused on Arabs and Muslims. You might also be deported if you're a son of Eire.

(2) Does your nationality determine how the US treats you if you are a terrorist?


21 July 2003

An op-ed urging funding for testing the DNA of prisoner who claim innocence.


Roanoke's trying to get officers to live in bad neighborhoods.

I think these programs are well meaning but unrealistic.

I've heard officers talk about how their neighbors will wake them up at 1:30 in the morning because the Smiths are having a domestic dispute or "Bobby Jones hit my little boy", etc. Why in the world would they want to move into a neighborhood where people might be waking them up for real reasons (gunshots, knife fights, drug deals)?

I lived in a less than opulent neighborhood when I first moved to Richmond and I heard gunfire fairly often. These represent real world threats which an officer might be held accountable for even if he was off duty. And, as the article states, there is always the danger of reprisal against a young officer's wife and/or child.

Sadly, I predict, even with support from the brass, this program will fail.



Someone is murdering championship horses in Kentucky.


No Prosecution of the Church:

The Massachusetts state attorney general has decided not to press any criminal charges against the leaders of the Catholic Church.


FBI Prejudice or Sour Grapes?

Bassem Youssef, who was born in Egypt and is now a naturalized citizen, has filed a racial discrimination lawsuit against the FBI. He claims that he has been frozen out of the 9/11 investigations despite his superior qualifications.

The article doesn't give us much to go on. I'd like to know how long Bassem has been a citizen, if his family is Egyptian (or Palestinian or . . .), if he's Coptic, how much of his life he spent in the Middle East, etc. Without these factors, I cannot make a judgement as to whether some sort of careful treatment might have been justified.


Sorry no postings yesterday. I got stuck at the office doing work. Yes, I know it was a Sunday but when you spend your weekdays in a courtroom you have to do your paperwork sometime.


19 July 2003

Death Cases:

(1) This is the most disgusting case I've seen in as long as I can remember.

(2) The Defense intends to claim this man was insane. And it's pretty easy to see why.

(3) He is a threat but he isn't: A man butchered a girl 17 years ago. He was declared insane and held in the State mental institution. He's now been declared merely mentally ill and not a threat. But he's still not being released because he is a threat as a sexual predator. Sounds contradictory to me.

(4) Further shaky confessions in the Malvo case. No Miranda, a ludicrous claim that guards are not law enforcement1, and a question asked Sounds like everything after the question should be excluded to me.

1 Would a prosecutor even try this argument if guards had separated a fight and then taken the two men off to interrogate them? Or if the guards were questioning everyone on the cell block as to how drugs got into the block?


Someone gave a boy a teddy bear with a loaded gun sewn inside. If they find the person he/she/it needs to spend a long time in prison.


An article basically stating that even though marijuana is illegal that it should be O.K. for doctors to reccomend it (at at least speak so glowingly of it that no one could fail to get the idea) just as long as they don't actually write out a prescription or participate in the street purchase.

Let's put this in perspective: Client comes to my office and tells me his Booky has told him that he will be dead in 6 months if he does not pay off the $50,000 he owes. I check it out and believe it to be true. I then begin extolling the virtues of burglary. "If someone goes into unoccupied houses while people are on vacation they can find electronic equipment to pawn, jewelry too, and in some houses people just leave money lying around in easy to open drawers or lockboxes. I bet people who do that kind of work make $50,000 easily within 3 to 4 months." Does anyone out there think I avoid prosecution after my client is caught and offers me up to the police in order to get a deal for himself?


Judicial Decisions:

(1) In the Moussaoui case the Judge is going to take briefings and try to figure out what to do in face of defiance by the executive branch.

(2) Racketeering does not equal terrorism (at least in Chicago).


"Punishment for some criminals does not end when the jail sentence does. But, authorities created the work release, trustee and home incarceration programs to avoid ruining salvageable lives."

These types of programs are needed in some cases such as those H/O offender who get a mandatory year for driving to work or to the store to pick up some food. Of course, for others it renders jail meaningless. A number of guys work for their brother-in laws' construction company, get picked up and dropped off by their wives every day, and always seems to be calling my office from a place that just doesn't sound like it's outdoors (much less like there is any work going on). The problem is that it is pretty much imposible to know who's in which group and the program is just too important for some clients and their families to do away with.


Law Enforcement Update:

(1) A reccomendation that police departments be required to report annually the number of people that officers have killed, wounded or shot at.

(2) As noted on The Legal Reader: A prosecutor goes too far.

(3) Another State lab has cut corners to get convictions.

(4) In Texas the former AG is being sent to prison for trying to fraudulently get money from the State's tobacco settlement.


Charlottesville is about to protest the PATRIOT Act.


Parking Lot Silliness:

In Charlottesville they are building apartments for students without providing adequate parking. They are only requiring 1 space for every 2 apartments despite the fact that the apartments are primarily for students who will probably each have a car. It's a vast improvement over the 1 space for 8 bedroom requirement origonally envisioned. Still, it comes across as a scam. We all know that students provide particulalry wonderful sources of income for local governments thru tickets, tickets, towing, and more tickets. What better way to guarantee the continuation - nay, the growth - of such an income stream than to make sure there aren't enough legal spaces?1

(2) And in Des Moines, someone came up with a unique solution to some speed bumps that were bothering him. It didn't last but he gave it a try.

1 Yeah, yeah, I saw the part in the article about using mass transit. I just don't believe that anyone is stupid enough to believe that a UVA student is going to go to the mall or movie theater by bus. They know full well that these students will almost all have cars and they are taking advantage.


Jury Duty:

(1) If you look on the web to find poisons and then actually make one the jury will probably convict you.

(2) Sixth Circuit Law tells us that the news media cannot be kept out of jury voir dire (at least in Kentucky).


Found around the blawgosphere:

(1) I saw the article yesterday but didn't get around to commenting on it. And when I got back from the office Lex Communis already had it summed up rather well.

(2) From Legal Ramblings: Just imagine being appointed by the court to represent one of these people.

(3) Dustin, over at Legalguy, has found some hilarious decisions.

(4) Snitching: Here on Legal Theory Blog (7/18/03 at 11:37) and much more here on Crooked Timber. This is always an interesting subject for those of us who deal with actual prisoners' dilemmas.


In Montville, Connecticut it is apparently against the law to "evade responsibility." Which should mean that every single one of us who was a 12 year old boy tasked with taking out the trash or mowing the lawn should probably avoid Connecticut.


Keep 200 cats in your house and the judge might decide you need a mental evaluation. Don't go to your mental evaluation and the judge might decide to send you to jail.


18 July 2003

Death Penalty Cases:

(1) As we all know by now, the Muhammad trial has been moved to Virginia Beach. The Virginia Beach merchants can barely conceal their glee at the opportunity for business during what is normally off-season. However, not all the citizens are happy.

(2) Illinois is going to require the taping of all homicide interrogations when the suspect is in custody. That makes three States who have adopted this rule and it's shameful that more have not. You hear all sorts of excuses as to why they do not but in the end it boils down to one thing: it will make the police officers' job more difficult. And the people who are making these arguments should really think about what they are saying. Basically, they are saying that if you film interrogations police will have to obey the law and constitution and this will make their job more difficult. It's a hard position to justify.1

(3) The man who went on a shooting spree at the Appalachian School of Law has finally been found competent. While he still thinks the FBI is plotting against him (don't we all) he no longer believes that his attorneys work for the FBI (or at least won't admit it). I find this part of the story interesting:
Three other students, including one from Roanoke, were wounded before Odighizuwa ran out of ammunition and was tackled by students.
I've seen this called a fallacy more than once and been told that students went to their cars got their firearms and backed him down. Can anyone point me to an actual article clarifying this?

(4) Death for political expediency. Governor Warner's political maneuvering in order to avoid giving Swisher (and others like him) a new trial has worked. When he granted a three week stay of execution to let the lawyers try one more time to convince the Virginia Supreme Court to hear the case (wherein there is clear error but no objection) after the Court had already ruled against Swisher on the same matter previously, it was political gamesmanship/blame shifting of the worst sort. And he played with a man's life no less. I could have respected a decision not to intervene (dissaprove, but respect) and I could have respected an attempt to fix it but there's nothing here to laud.

(5) A rehash of the story about how the feds are forcing the death penalty on Puerto Rico despite the fact that it is against its constitution and that it is overwhelmingly abhorred.

(6) SW Virginia Law Blog points out a case wherein a man tried to have 3 people maimed while he is still in jail. His just dues? 10 years in federal prison and a lifetime in the care of the Commonwealth. How can you be in prison that long and not know (a) your mail is read and/or (b) other prisoners will rat you out the second they can get something for it?

1 I know some will say money is the issue but that is hard to believe if you go to any Sears and see the high-quality video cameras for sale, many for less than $500. Add a $50 tripod and tapes and you are good to go.


Drug Cases:

(1) Hiding marijuana in the Bibles you are sending to your boyfriend in jail will get you jail time too.

(2) If your primary witness cannot testify that she saw a drug sale you cannot prove your case.


Hard Cases Make Bad Law - More Fallout from the California Ex Post Facto Debacle:

(1) Prosecutors are still trying to get ahold of the Los Angeles Archdioceses' files even though they cannot be used in criminal proceedings under the claim that they might be usable in civil suits (which would seem to be none of the prosecutors' business). Gotta love how one attorney who represents 112 claimants is giving the Church advice on openess. There couldn't be any self interest involved in that advice, could there?

(2) A case made for eliminating statutes of limitations. I think that the California Legislature has basically done this already in abuse cases. The ex post facto came from the fact that certain alleged violations occurred when the SOL was shorter and prosecution began after the old SOL had run. Still, it's a bad idea. Try defending yourself 5 years after a claimed violation of a law much less 30+. It is very, very difficult. Where were you the second Tuesday of last month 20 years ago? Now, find witnesses and documents to prove it. Can't do it? No problem; after all the burden of proof is on the prosecutor isn't it? The jury never comes into court with a belief that if someone's charged they are likely guilty. And you'll have no problem countering the tearful testimony of that grief stricken complaining witness (Mr. Smith) who has just recovered his memories or the authoritative sounding testimony of the quack - oops I meant "expert" - who testifies as to the validity of repressed memories. And the fact that you may not even remember Mr. Smith is going to be oh so helpful as well. Just tell that to the jury - they'll understand.


17 July 2003

White Collar Crime:

(1) Bribery, favors, and political corruption.

(2) Governmental agencies are trying to break attorney-client privilige. In at least one case the IRS obtained an order, in an ex parte proceeding no less, to try and force a law firm to break the privilige and betray its clients. The firm has declined and the IRS is mulling over the possibility of further actions.

The article concludes with a list of a number of cases where the government has been fought to a draw or an outright loss in these sorts of cases.