31 January 2004

New Posts over at JuryLaw.

As with DeathLaw, postings will be more sporadic in this sub-blog and I will post notices here when they are up.
Suing for $1.5 million because the cat the librarians kept as a pet scratched an assistance dog.

$1.5 million? Okay, let's assume that the cat totally disabled the dog (not the normal result in the confrontations I've seen between cats and dogs). Let's assume your preferred breed of assistance dog is the rarest of breeds and the puppies cost $10,000 apiece. Let's assume that the breed is dumb and stubborn and takes two years to train with it's own full-time, personalized trainer at $75,000 a year. $1.5 million?

So what's that leave? Pain and suffering for the owner? If you're psyche is so frail that you cannot understand and deal with the fact that cats and dogs sometimes get into confrontations maybe you shouldn't go out into the world. There are cats all over out there.

And does anybody believe the cat started this? That runs contrary to most people's experiences. The only time I have seen my cats aggress against my dogs was when the female had her first litter. For the first month or so I think she would have attacked a black bear if it was stupid enough to get near that kitten.
Ashcroft tries to bluff back Senators who are trying to fix the PATRIOT Act.

Here's a nice bit of hyperbole: By returning the law to its former state (and in some cases only moving it closer to its former state) "Ashcroft . . . said the legislation would "make it even more difficult to mount an effective anti-terror campaign than it was before the Patriot Act was passed."

The sky is falling! The sky is falling!
An article urging the feds to resume testing people for drugs as they are arrested.

30 January 2004

Overpundit expresses concern that Thornton v. United States will result in a ruling which allows police to search any car wherein a person whom they have arrested was recently.

I agree with his sentiment and hope that the federal supreme court stops the insidious practice of allowing officers to search a car after a suspect has exited - when it is clearly not done in an effort to keep the officer from the car. This has been the law of the Commonwealth of Virginia since Glasco v. Commonwealth, 257 Va.433 (1999)(very similar facts to Thornton). Nowadays, if officers develop probable cause in your client's case the client had best not have even thought of being anywhere near his car or they're going in.

As I've stated before, I no longer believe that you have rights if you decide to drive a car. I'll keep fighting the rearguard action but the battle here is lost and the wasteland it has left behind is desolate.

And I state yet again, lest I get nastygrams, I do not blame the officers for this. The rules are laid out by the courts and legislatures. Most officers follow the rules and the responsibility for their actions lies at the feet of those who allow them.
The Legal Reader points to more blowback over the misuse of the PATRIOT Act.
TalkLeft points to a judge who believes that the Congress is trying to bully him into sentencing harshly and is now filming his sentencing hearings because he thinks the appellate court needs to see the hearings. He apparently is taking the position that when the appellate court agrees with the prosecution that the trial judge has not sentenced harshly enough it is resentencing the Defendant and needs to see the actual hearing.

It's interesting but I have to wonder whether the appellate court will actually view the tapes or if it will only read the briefs and listen to oral argument. If the Defense gets a copy I guess it could try citing to date-time stamps on the tape to force the appellate court to view the film.
Howard Bashman (How Appealing) is opening his own appellate law firm.

Good Luck.
Bryan Gates (I respectfully dissent) points to a case where a Doctor stared into the face of the Captain heading the local narcotics detail and told him to go jump off a bridge (after he had threatened to arrest her for refusing to do an internal search).
Over at The Curmudgeonly Clerk there has been some discussion of this post.

Actually, at first I took "unable to verify" as an admission that the dog had previously alerted when there were no drugs found. The officer understood the question, she just wasn't going to admit straight up that her dog makes errors. However, to state what I believe the officer's final position was (after 2-3 pages of transcript which I was too lazy to type in completely): when her dog alerted there might not be drugs present at that time but there was residue from prior presence which precluded the confirmation of drugs. Thus the dog does not fail; humans fail in not being able to confirm the presence currently or in the past. Police learn to make statements like this because they are too often rewarded for them by the courts who are looking for any reason not to suppress evidence. So the Clerk is dead on in his analysis.

Dedman suggests that perhaps people should be more careful of how their statements might be read once they are transcribed. That's a mighty high standard during the give and take of a trial. People just aren't thinking about the transcript during a trial. Here, the officer was trying her best to spin things her way to win with the trial judge and I was doing my best to make it obvious that she and her partner had violated the Fourth Amendment by searching my client's truck after the client had been judged not to have drugs, the dog had not alerted on the truck, and the dog had alerted on the passenger but upon a search of his person no drugs were found. The judge stopped us during argument, ordered a transcript and required us to brief the matter.1

1 In Va. State trial courts my suppression motion usually doesn't say much more than "They violated Client's 4th Amendment rights." This is because no more is required and the prosecutor is not required to answer my motion. I have offered more than once to pre-brief my motions if the Assistant Commonwealth Attorney on the other side will file a reply brief and not use any paralegals or interns to write the brief or research the matter (in at least one jurisdiction where I practice briefs seem to be written by the law student interns and the prosecutor, like as not, may come in arguing something entirely different than what is in the brief). No prosecutor has accepted this when I offered it.
Difficult to fence it is. Easily traced is it.

Okay, so you steal a Yoda statue. What are you going to do with it?
Joshua Claybourn provides A tale of 2 probationers.

Sadly, while I hope that the second person was truly reformed (and Joshua was clearly in a better position to judge then I am), this looks to me like two different ways of scamming the system. I think that few actually do the in-your-face thing. Far more likely is the second approach: I've found God. It's the biggest scam in the prison system. I'd say that perhaps 40% of my clients go to religion classes while they are in jail. Partly it's because they are bored and there is nothing else to do, partly it's because they can get certificates of attendance or letters from the person running the class to use in their sentencing hearing (or motion to reduce sentence), and sometimes there is genuine interest (one can hope). However, over time I've noticed that clients who know they are going away for 15 years, or who are on their 9th felony and know that judge Smith is going to give them two years no matter what they do, don't bother. Or at least if they are going they don't tell me.

Now, my perspective is different from Joshua's. I seldom see, and don't long remember, people who had one brush with the law and reformed. I see the recidivists - the people who find jail / prison unpleasant but are not deterred by its threat. It is my most sincere hope that some find their faith and move on to a better life. It's just that I live and work in a cynical world where religiosity is another pawn in the game. And we all recognize this. Arguing that "my client has found God" is seldom an effective argument during sentencing hearings or motions to reduce sentence because everyone in the courtroom has heard it so many times with people whom we all know that we will see back in the system within a year or two of sentence completion.

Thanks to Joshua for pointing me to a thought provoking post.

Dominus Vobiscum

29 January 2004

I'm really starting to enjoy a couple of newer sites - Overpundit and legal fiction. I commend both to you.

Addendum: NO, I haven't turned into a bleeding-heart Liberal because I linked to someone who actually has the ACS linked on his site. I often disagree with the author (my philosophy is probably closer to feddie at Southern Appeal) but that doesn't mean the site is not worth a read. It's well reasoned and well written and has the potential to become a significant site in the blawgosphere.
Confusion and dissension in the federal ranks after a terrorism conviction.
Crime in the Victorian era:
Equally annoying, though perhaps not so ultimately dangerous, is the sham railway porter or messenger. This variety of the predatory race is in the habit of watching the master or mistress clear from the house, and then calls with a bogus parcel, for the carriage of which, and sornetimes for the parcel itself, he, demands such sums of money as lie thinks most likely to be paid without question. In no case should a parcel be taken in under these circumstances. Another well-known parcel dodge is to watch the delverey by some draper's cart of a parcel, and ten minutes afterwards to call and redemand it, on the plea of some mistake having occurred in the delivery.
If you advertise your prostitutes in a two page Yellow Pages ad the police might catch on eventually.
Virginia is moving toward a clergy snitch rule. It excludes the confessional but is still somewhat worrisome. What happens if a priest suspects something but before he can report anything the perpetrator goes to confession? Or what if someone tells the priest during confession and the priest notices indicators afterward?

And the $64,000 question: can the exclusion of evidence acquired during the sacrament of confession be found to be a violation of the constitution because it favors those denominations with such a private sacrament over faiths which have none (or worse require open confession in front of the congregation)?
Prosecutors in Colorado are subject to term limits.

28 January 2004

From a transcript of a case for which I am writing a brief:

[About a drug sniffing dog]

Me: Do you know how often your dog gives false positives?

Officer: He doesn't give false positives. We're just unable to verify the alerts at that time.

A very unhappy Defendant.

Hey! When did these guys come in and check out my apartment?
Leaving a gun where it could be found by a child - who then kills himself with it - is not felony child abuse.

For what it's worth, I think that is correct and Judge William Broadhurst is to be commended for making the tough call. Not many people are made happy when you follow the law rather than the instinct to punish, even when it's an accident.
The Justice Department has stopped testing newly arrested Defendants for drugs because of budget constraints.

27 January 2004

This just in: Foxes deny that anything has gone wrong while they have been guarding the henhouse.

The Justice Department investigated itself and determined that it had not violated anyone's civil liberties through the PATRIOT Act. Of course, since it's Justice's position that the PATRIOT Act doesn't violate the rights of citizens it would seem to be a pretty circular conclusion.
Opening statments in the Martha Stewart case.
If you try to escape from jail you should probably make sure you can fit through the window first.
New post at DeathLaw

Fellers v. United States

The Supreme court reverses the lower courts by ruling that questioning before Miranda violates 6th Amendment but remands to the Circuit Court for a decision as to whether that means the post-Miranda confession must be supressed.
The Court of Appeals erred in holding that the absence of an "interrogation" foreclosed petitioner's claim that the jailhouse statements should have been suppressed as fruits of the statements taken from petitioner at his home. First, there is no question that the officers in this case "deliberately elicited" information from petitioner. Indeed, the officers, upon arriving at petitioner's house, informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators. 285 F. 3d, at 723; App. 112. Because the ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of petitioner's Sixth Amendment rights, the Court of Appeals erred in holding that the officers' actions did not violate the Sixth Amendment standards established in Massiah, supra, and its progeny.

Second, because of its erroneous determination that petitioner was not questioned in violation of Sixth Amendment standards, the Court of Appeals improperly conducted its "fruits" analysis under the Fifth Amendment. Specifically, it applied Elstad, supra, to hold that the admissibility of the jailhouse statements turns solely on whether the statements were " 'knowingly and voluntarily made.' " 285 F. 3d, at 724 (quoting Elstad, supra, at 309). The Court of Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner's jailhouse statements on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard. We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue in the first instance.
It's an interesting opinion but doesn't appear all that useful without an answer to the second question. You have to wonder if the appellate court will take the hint.
Okay, there can no longer be any jokes about the fact I grew up in Kentucky:
[A man in Utah] was sentenced Monday to a year in prison for taking a 15-year-old cousin -- who was also his aunt -- as his wife.
Wearing a bumblebee costume to court?

I guess that makes it pretty darn hard for me to complain about my clients showing up in a Packer jersey and jeans about 6 times too large.
Part of the PATRIOT Act shut down because it is unconstitutionally overly broad.

26 January 2004

A Week in the Life of a Criminal Defense Lawyer:

Monday - MLK Day ~ No Court

Tuesday - I have to go to court in the morning for a client who I know has hired another attorney. The client had told me a month earlier that he had hired this attorney but the attorney never sent me an order of substitution. So I go to court sit there for 15 minutes, walk up, and am withdrawn from the case. In the afternoon I come back to court and get my client's possession of heroin case dropped by the prosecutor because the lab analysis showed that the substance the officer seized, relying on his training and knowledge gained from years on the street, wasn't any type of illegal substance. I get another client's driving on a suspended license charge continued so that she can get her license before she faces the court.

Wednesday - I get up and am in the middle of getting dressed for the general district court's 8:30 docket when I look at my PDA's calender and realize that I'm actually due in court at 8:15 because it's a return (to make sure my client is paying restitution) and the judge involved has his returns start 15 minutes before court is scheduled to begin. In that instant I go from being on schedule to being at least 10 minutes behind. I rush out the door and burn rubber - of course, never exceeding the speed limit. I even tie my tie at a stoplight on the way in (the disturbing thing is that it turned out better than it usually does when I tie it in front of my bathroom mirror). I get to the courthouse 5 minutes after docket was to begin; I'm feeling pretty good because dockets never start on time so I'm fairly sure nothing will have taken place yet. Then I look at the bulletin board where the docket is posted. The Judge has changed the time he does his returns from 8:15 to 8:00 a.m. and nobody bothered to tell me. I rush down to the courtroom and talk to the deputy at the back door who tells me that my client had already been called, that he had paid his restitution, and the client was released from supervision. I check this - it's absolutely correct - and then I go upstairs to the circuit court and wait until the docket there starts at a little after 9:00 a.m.

In the circuit court I have a client who had been convicted by the general district court, upon a plea of guilty, of assault and battery for attacking and choking his sister-in-law. He'd received the maximum penalty that court could give him (12 months) and exercised his absolute right to appeal the decision to the circuit court and get a trial de novo. I go and talk to the prosecutor, angling to get an offer which might get my client a couple months less in jail, but the prosecutor refuses to deal. Then I offer that we both proffer the testimony on my client's plea of guilty but the prosecutor declines that offer as well: "If I don't put her up on the stand how am I going to get the 12 months again?" Okay, fine. My client pleads guilty. The prosecutor puts the victim on the stand to testify how my client had run across a school lobby and started choking her until she was almost unconscious, then tossed her aside, and ran off. She swears that there were no problems between her and my client. Then I put my client on the stand to testify about how he had been jumped the night before by three guys who had cut his face and told him to stay away from his sister-in-law. I take a pair of panties out of my folder and holding it with my pinky and thumb ask him if he recognizes it. "Yes sir, that's a pair of her panties which they threw in my face." Me: "Your Honor, I don't have a bag or anything, if you want to see them . . ." Judge: "That's okay Mr. Lammers, I'll let you hold on to them." Client then testifies that he had gone to ask her why she sent them and lost his temper when he saw her. In the end the judge sentences my client to 6 months in jail rather than the 12 months he had received in the lower court.

I eat lunch with a deputy who works on the road (serving papers, evicting people, etc.). Being a good guy he tells me a shortcut to the rural county courthouse I am going to that afternoon. I jump on this road and drive along for miles and miles as the road twisted and turned through the Virginia countryside. It kept getting smaller and smaller and smaller. Finally, the last couple of miles were about a car and half wide with no lines at all alternating between areas which had been covered with sloppily laid blacktop and areas where you dodge deep potholes (which my '89 Saab just ain't gonna handle). But in the end it did get me there about 15 minutes quicker. It might have even been quicker if I hadn't got caught behind that tractor for a mile or two.

My client in the rural county is appearing before the court for a sentencing hearing having previously pled guilty to 3 counts of distributing small quantities of cocaine. I arrive a hour and half early so that I can go over his presentence report with him (as is fairly common, the report showed up too late for me to get to the jail and go over it with him). It takes all of 15 minutes; if I hadn't come early I'm sure that discussion would have taken an entire hour and half. So I spend the next hour plus talking to a deputy and a couple of guards from the jail until court opens at 2 p.m.

When the case is called I stand and point out to the judge my client's serious medical conditions. I point out that he was caught dealing minor quantities of cocaine. Then I point to a statement my client made to the probation officer as to his plan for self help after completing his sentence: "I don't make mistakes twice, I'll never do that again." I then proceed to argue to the judge that he should take my client at his word: "You see that the probation officer lists Mr. Smith's IQ at 76. Well, I just don't buy it. We can see from the record that Mr. Smith learns and doesn't make the same mistake twice. In '85 he was convicted of felony larceny [edit. comment: he stole a dog from the local pound - any theft of a dog is a felony in Va.] but he never made that mistake again. In '92 his charge of felon in possession of a firearm was taken under advisement and we never see him making that mistake again. Now we see him before the court on the only drug charge ever on his record. I tell you he's learned this lesson just like he did previously and it is obvious that a long sentence is not needed to drive the point home. I ask you to take him at his word and sentence him to as little time as possible." The judge listened politely and then proceeded to sentence my client to ten years on each count with eight years suspended, all three sentences to run concurrently.

As I am driving back from court I check my messages and there is one from the federal clerk's office. I call back and get assigned a case as I'm driving down the highway. At one point I just have to pull off the road because the clerk is giving me a lot of info and it's kinda tough to drive, write stuff down, and hold the cell phone all at the same time (for the record I was not writing while I was driving).

Thursday - I go to court for a client's preliminary hearing on a felony DUI (3 DUI's within 6 months) and her trial on a misdemeanor suspended license charge. After the hearing, I go to appeal the misdemeanor so that there is one sentencing event in the circuit court. I wait for the clerk to complete the paperwork of the person in front of me (who has already left). And I wait. And I wait. And I wait. And I wait. Meanwhile, the people who have been sent to the clerk by the traffic court pile up behind me. 5 people, 10 people, 20 people, 30+ people - the clerk is off in her own little world and doesn't even notice. Finally, the clerk walks back over to the window and realizes that if she doesn't move fast the line is going to back up into the courtroom. She shifts into fourth gear and gets my client's paperwork done in about three minutes. A forty minute wait for three minutes of work.

In the afternoon I have a client charged with driving on a suspended license. It's a particularly nasty form of driving suspended which will take my client's license for a year because he was convicted of a DUI three years prior. My client had been making efforts to get his license back - which usually leads to conviction under a statute which doesn't take his license - so I make a motion to continue the case. The judge won't have any of it. So then I run down to the law library and spend the next hour or so looking for any angle I can find to try to get this thrown out or reduced. I spend most of the time looking up a case which I think will prove my client not guilty. Bingo! Then I look a little further and figure out that the case has been made irrelevant by changes to the statute. Crud. Client has to plead guilty but he's happy with his 10 days in jail (weekends) and not all that concerned about having his license suspended even further.

- I go off to another county to represent a client on a show cause for not paying off a fine. While waiting for the case to be called I see a lady walk up to bench. On the other side a bunch of prison guards and a detective come up. The lady then spends the next ten minutes or so trying to get the judge to assign an attorney to her case but he won't do it because a prior judge has decided she doesn't qualify. The prosecutor, trying to be decent about it, tells the judge a couple times that he is not comfortable trying this woman without a lawyer. When that doesn't seem to do any good he points out to the judge that a certificate of analysis was filed late and the lady is entitled to a continuance; he points it out a couple or three times but the lady doesn't seem to get it. Then the judge pointedly asks her if she wants a continuance (twice); it's very obvious she has no clue what's going on and finally she says "no." At this point I stand up and volunteer to take the case pro bono. The judge agrees and gives me a few minutes to talk to the client and the detective. Proving that no good deed will ever go unpunished, the first thing the detective says to me is "I haven't got all the transcripts here, but I've got fifty pages here and I can get you the rest." Shortly after that conversation I go into the courtroom and ask the judge to grant a continuance which he does. Then he calls my next case and, despite my best efforts, refuses to give my client a continuance so that my client can get his fines paid. He points out that my client has had 5 or 6 continuances already over a 7 month period and there have been no payments made at all. I show him medical records from my client showing that he had congestive heart failure about six months ago and has only been back to work recently. The judge isn't having any of it. With my client almost crying next to me (in fake "whispers": tell him this - tell him that - what'll I do?), the judge sentences him to 30 days in jail but agrees that he can do the time on weekends if I can find a jail which will take him and sets his date to report off for a week.

In the afternoon I sit in my office waiting for clients to come in and two actually do. It's a miracle two clients have shown up two weeks in a row. Of course, the federal client came from 4 counties on the other side of Richmond so I spent the better part of a hour on the phone trying to get him to my office. Oh well, at least I know the feds will pay me for all my work.

Addendum: Matt comments on this post here: Stop the Bleating!

25 January 2004

Riding a Pale Horse

Rather than doing the list of interesting cases involving murder and the death penalty here I have started a supplementary blawg DeathLaw.
Justice Antonin Scalia cannot imagine why anyone prepared to plead guilty in court should have to be advised that it would be wise to talk first to a lawyer.

"We want to encourage people to confess," he said during oral arguments last week. "Why do we want to encourage them to hire a lawyer so they will get off on an irrelevancy?"

Another sign that the Justices have little real world experience - particularly no significant real experience in the actual working of our justice system on the street and in the trial courts.
Uber-technicality in California:

In Los Angeles the Public Defender's office is challenging every single misdemeanor charge in the city. The reason for the challenges is not because people might be innocent or subject to some massive due process violation; it's because the City Attorney may not have been technically qualifed to be elected to his post. Again, there is no allegation that this has effected the bringing of and/or prosecution of misdemeanors.

Even in California no judge is biting on this red herring.

Why do you do this? It can only make your office look foolish in front of the judges and engender hostility with the attorneys you must negotiate deals with each day. And you cannot actually think that you are going to win. Well, it is California . . .

From Southern California Law Blog.
Albemarle County Sheriff Edgar S. Robb must be congratulated for taking the proper stance in who should be chairing regional jail boards. Personally, if I were an elected official I don't know if I'd want the responsibility. But it is the right thing to do.

Regional jails are easy dumping grounds for prisoners who are trouble makers or who have serious (expensive and/or life threatening) medical problems. Once that prisoner is out of the Sheriff's local jail there is no elected official in the loop. So if Dr. Smith at the regional jail, in trying to weed out malingerers from those who actually need meds and with an eye toward his meager budget, withholds necessary medicine from a number of patients who are in serious need of it the local newspaper isn't going to be able to do an expose that points at the sheriff.

By standing up and saying that elected officials should be the ones who take responsiblity for the prisoners who have been placed in their care Sheriff Robb has shown himself to be a class act. A shame he's not in a county where I can vote for him.
I don't care how much you are provoked you gotta know that the wrath of God is going to come down on you if you burn a cross in someone's yard. How stupid can you be?

I'm not a fan of prosecutors having the ability to appeal results they don't think are severe enough. And I think a year was probably too severe (especially considering the other perpetrator was getting no time). Still, you have to wonder what the judge was thinking. The guy should have seen the inside of a cell for at least a week or two.

Another question which comes to mind is why were the feds were dealing with something this petty? Don't tell me that local law enforcement couldn't have dealt with these Huckleberries.
The Klan and Masks:

Okay, let me begin this by stating that I am one of "those people" whom the Klan despises (a "Romanist"). And I ain't got no use fer them either.

Still, this rationale for denying them the use of masks is disturbing:
The three-judge federal panel said the mask was not protected because it does not convey a message independently of the KKK's robe and hood.
. . .
"Since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and hood do not," the appeals court said. "The expressive force of the mask is, therefore, redundant."
I find that rationale more than a little disturbing. It's the equivalent of stating: "Mr. Lammers had a 6" St. Benedict crucifix hanging around his neck and a jacket with a large K of C 3d degree symbol on it. This clearly identifies him as a Roman Catholic. Therefore, we can restrict him from wearing a monstrance pin because it is redundant."

Yeah, I know it's a stretch but a precedent like that is always disturbing because it clearly restricts how a person might choose to express himself.

And no matter how hard the article tries to make a bunch of numbskulls walking down the street in masks the equivalent of yelling "Fire" in a theater it just isn't the same thing. Decisions like this - whether they rely on a "redundancy" argument or a "yelling fire" argument - are just ways of sticking it to a disfavored group. And the laws and decisions aimed at the disfavored group won't just dry up and blow away as time passes. After all, how much damage is still being done by the Blaine Amendment provisions which were put into numerous States' constitutions?

24 January 2004

It's a proud week in the history of Louisa County, Virginia:
Louisa County sheriff’s deputies arrested [Police] Chief John Wilson around 4:30 p.m. after Sgt. Robert Franklin Rigsby filed a criminal complaint against him Wednesday. Rigsby alleges that the chief struck him in the groin Dec. 31 following a scheduling dispute.

When Wilson appeared before the magistrate Thursday, he filed an identical charge against Rigsby, who was then arrested at 6:15 p.m.
A judge trying to explain why it was okay for him to force someone to go to yoga classes for a year.
By popular demand the return of the most popular Blanton's Masthead.

BTW, if I haven't made this clear before, Explorer drives me nuts. Every single time I work on the format of this site I get it to work with Opera, Netscape, and Mozilla fairly quickly. And then I spend forever trying to get it to work with Explorer. AAAaarrrgggg!!!
No agreement on a plea deal for Rush.
You can't get away from the feds. Even if you're DEAD.
Does "party" mean use drugs or have a homosexual liaison?

Well, in Florida it can mean either.
"[A] woman was excused from jury service, then looked across the room at [Martha] Stewart before and blurted, 'I am a huge fan of yours. Good luck.'"

And for some reason this worried the prosecutor. ;-)

Actually, if I were the prosecutor I'd be more worried about the stealth juror who says to herself "Martha shouldn't be here and I'm going to say whatever I have to in order to make sure I'm on the jury so she can't be convicted."

23 January 2004

In reference to my former post on Hilliard v. Commonwealth a reader asks:
I'm curious if you have any advice for your blog readers on the correct way to request a lawyer during an interview. If "I would like a lawyer here so I don't get in trouble" doesn't count as a request for council being present during interrogations, what does? Is there a catch phrase that must be repeated a certain way? Do you have to click your heels together three times as you say it?
Well, I tell my clients that they have to say exactly this phrase: "I will not talk to you without my attorney, Mr. Lammers." Anything less will be deflected by the officer: "Can't I have my attorney here?" Officer: "Sure you can but I just want to ask you a couple of questions. First . . ." While reasonable people would realize this is an attempt to ask for an attorney that's not the standard. The standard is that the Defendant must have made an undeniable assertion of his rights. If there least little equivocality Virginia courts will not recognize the assertion.

Of course, even if the Defendant makes the unequivocal assertion the police can come back later and try again and again and again - as long as they stop each time when the Defendant unequivocally asserts his rights. I've only had one officer do that to a client of mine but they can do it (at least as long as they don't try to question the Defendant about specific charges for which he has counsel assigned).
It looks like there may be a new federal courthouse built in Richmond, Virginia. It's probably a good idea. The old courthouse is spread out between two buildings with the courtrooms scattered throughout different floors in both buildings separated by various chambers and other offices. The building is definitely old and - while probably adequate at the time originally constructed - now has more business than it really has the capacity to adequately deal with. It still works because of the paucity of cases which are handled in the federal court. If a heavy docket ever hit that courthouse it would be a nightmare. Hopefully the new courthouse will have a better design with Magistrates all on one floor, District Courts on the next, etc.
In California they have peremptory strikes for judges? Gotta wonder how that works out. If you drop judge Smith two or three times he might not be very favorable to you if you are ever put in a position where you must try a case in front of him.
Found Around the Blawgoshpere:

(1) The Curmudgeonly Clerk is having an indepth discussion about statutory rape.

(2) The Legal Reader notes yet another case where anti-terrorism laws are being used against common criminals. Who didn't see that coming?

22 January 2004

Thank goodness my high school was not a warzone which required armed police presence. Another reason why people who can leave Richmond do so when they have kids (or send them to private school).
The Jury:

Barbados is taking steps to strengthen the jury system while New Zealand will probably take two steps clearly meant to weaken it (having come to the conclusion that they can't trust some of the citizens all the time and all the citizens some of the time). You know, it's disturbing that a 13% hung jury rate would be attributed to a problem with the jury rather than (just perhaps) the prosecution not being able to prove its case adequately.
Remember a few days ago when I posted about how tacky it was that California localities were lobbying for the Scott Peterson trial? Courtesy of John D., here is an e-mail he received when he inquired (I include the entire letter so that I cannot be said to have skewed it):


I am sending you the email I sent to our members which I hope clarifies things. We were appalled at the impression created, as you were . (pasting below) Believe me, the impression created by the articles and edited news clips are far from the truth.

As you are all seeing/reading, the Peterson trial story has taken on a life of its own and many articles are continuing to say we "lobbied" for the trial and are excited about the opportunity of a trial generated by a terrible crime. Here are some facts for you:

We NEVER lobbied for the trial, and as Sheriff Horsley has said, you CAN'T lobby for a trial. What we DID do is send a professional note to the judge as soon as it was announced that we were a possible venue, saying that IF we were chosen, we would be happy to assist the media. We did NOT include promotional materials, nor did we attempt to "sell" the county or compete.

In terms of our reaction to the event, I have made a point in conversations w/reporters to say that our whole county mourns Laci Peterson and her son and that the crime was awful. (As a mother myself, the crime horrified me and not a day goes by I don't think about Laci's family.)

Unfortunately, we can't change what happened--the trial already exists--and it had to go somewhere. While we were stunned with the announcement of the move to our county, we are in the hospitality industry and no matter what brings people here--good news or bad--it is our job to take care of them.

Our area and hospitality industry can use a shot in the arm after the tough times following 9/11 and the dotcom downturn. If we were/are excited, it's because filling our hotels again can put people back to work, pave our streets, pay for police and fire and on and on. You all live here and you know how tough things have been.

This means no disrespect to the victim or her family and I am sorry if anyone interpreted it that way. We are in tough times.

In most conversations, the media have asked for an economic impact (anywhere from six to 16 million dollars) and then said, "wow, so what is your group's reaction to that?" Needless to say, it is great excitement. Our county has been suffering greatly.

We have a lot of stories to tell about this county and having the media here presents a definite opportunity for exposure. It goes without saying that the reason they are here is unfortunate.

We have told the press that we know the county has concerns about the costs, BUT that county officials are willing to step up to the plate as are we--and that we will work together as a team and bend over backward to help them in any way.

Having said all of this, we want the world to know we are a hospitable community. I urge everyone to keep prices down during the trial, so we are generous as we step up to the plate with the rest of the county . >From what I'm hearing so far, this is exactly what you are doing.

Thank you!

ne LeClair, CAE
President & CEO
San Mateo County Convention & Visitors Bureau


The problem is that the underlined paragraph (my emphasis) would seem to be belied by the direct quote from Ms. LeClair found in the original article. And, yes, you can lobby for a trial. It may be a dumb thing to do (or looking at that letter, desperate) and it should be entirely ineffective. Nevertheless, you can lobby.

20 January 2004

"We nevertheless reiterate that violations of state procedural statutes are viewed by the courts with disfavor."

However, we will strongly encourage such actions by finding that even though the police acted illegally in arresting a Defendant in a city where they clearly had no jurisdiction it is not grounds for supressing evidence gained through the arrest because it is only illegal - not unconstitutional.

Commonwealth v. Coleman

A Chesterfield County case.
"Can I have somebody else present too, I mean just for my safety, like a lawyer, like y'all just said, or something?" isn't an invocation of your right to counsel.

Hilliard v. Commonwealth
A prosecution appeal denied on a hyper-technicality. The petition was mailed on the right day but not in the correct manner.

Commonwealth v. Green

Yipes! The decision is correct - now my whining about how courts always find in the prosecution's favor may have to be curtailed a little bit. Naw - what's the fun in that? Anyway, it's only one case out of how many?
Police, acting on an unreliable informant, assault a car with guns drawn. A judge in Chesterfield County (a very, very conservative county1) finds this unconstitutional. The prosecutor appeals this to the Virginia Court of Appeals.

Ignoring the basic rule of appellate law that the appellate court must interpret the facts in the favor of the party prevailing below (or at least not adopt facts which the trial judge had to reject to rule as he did) the appellate court finds that despite the fact that the informant was not proven reliable and despite the fact that police without probable cause rushed a car with guns drawn, pulled the occupants out of the car, put them down on the ground and cuffed them (clearly unconstitutional) the evidence which came from the subsequent search of the car shall not be excluded.

Huh? How, you ask, did they get there? Entirely adopting the prosecution's interpretation of the facts, they made findings of FACT which were not made by the trial judge (clearly outside their purview). Then they say "So what if the arrest is unconstitutional? According to the facts, as we determine them, we don't care that it's illegal/unconstitutional because the officers would have had reasonable articulable suspicion and conducted a constitutional search of the car anyway."

Remember the discussion of whether 4th Amendment rights still exist if you drive your car and/or how a court will twist the law in order make certain evidence which should be suppressed will be introduced to make sure the guilty Defendant goes to prison? Well, here's the Defense attorney's nightmare: Commonwealth v. Fraierson.

1 A standing joke as to suppressed evidence cases coming out of Chesterfield is that the fact a Chesterfield judge found the evidence unconstitutional should, of itself, be a dispositive argument in the appellate courts. It's always interesting reading appellate treatment of Chesterfield cases because the trial judges are good at what they do and when they exclude evidence it is not often in a gray zone; it's clearly over the line. And the trial judges are well versed in 4th Amendment decisions because the Street Drugs unit in Chesterfield is extremely proactive and will push as far as the courts will allow it (and maybe just a little bit further). So the appellate courts really have to stretch to come in with pro-prosecution decisions.
Even chimps don't like being held in prison.
The feds have indicted a bunch of people in NY for having names that end in vowels. Or some reason like that . . .
Should the media be allowed to watch jury selection in a case with a lot of media attention? Or is it enough to only give the media a transcript of the hearing?
Strange Legal News:

(1) A lady fights a knife wielding robber off with a stapler: "I would have stapled him," Rankins said.

(2) If you yell at kids for playing their music too loud you could be the one convicted of disturbing the peace (at least in Montana).

(3) If somebody's selling a Harley for $10,000 less than market value it's a scam. Not a very well run scam but a scam nonetheless.

(4) If you steal a snake by stuffing it down your pants you might get bitten:
The tiger python snakes were not poisonous, and the 20-year-old man, whom police declined to identify, did not seek medical treatment for the bite to his groin area.

(5) If strippers are wearing flesh colored latex they are not nude:
Authorities say the officers, who had not seen the flesh-colored latex before, expressed doubt that the dancers were sufficiently covered. Court papers say police then were confronted by women "who held their breasts up to the officers and argued that they did have material covering their breasts."
(6) In Japan they are serious about their law enforcement: Police said they could not let the incidents slide, even though the men are believed to have stolen $0.0094 worth of electricity.

(7) Proof positive that Microsoft has absolutely no sense of humor: MikeRoweSoft.

(8) "A skinny rapist met his match in an angry, 275-pound prostitute." 'nuff said.
The Roanoke Time wants to send kids found with a gun directly to jail, do not pass Go, do not collect $200.

19 January 2004

Whoever is in charge of John Edwards' spamming campaign - Please, puhleez, stop sending e-mail to my business account every hour. I don't live in Iowa and I'M NOT IN YOUR PARTY!!!
Naw. She couldn't have stolen the dog. I know that my dogs wander over to my neighbors' houses and hide in their basements. All the time.
A mayor steals a $1,000 bill from a citizen and prosecutors refuse to press charges.
The mayor of this St. Louis suburb fancied a rare $1,000 bill that was seized in a traffic stop, so the town wrote the driver a check and the politician kept the cash.

. . .

County police and prosecutors found that Pine Lawn officials broke no laws. But Don Schneider, a spokesman for St. Louis County Prosecutor Robert McCulloch, said "it's a bad idea for a city official or politician to have access to evidence."
No kidding.

How is not theft? That bill is not fungible so I don't care how many checks or hundred dollar bills you leave in its place it's not the same thing.

MRS sec. 570.030. 1. A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.

Seems to me that the mayor and deputies appropriated property of another with the purpose to deprive him thereof. It's pretty much black letter law.

found at Freespace
123 people at a dog fighting arena are arrested.
This is a no-no:
[G]uards used cash, cigarettes, drugs and other contraband "to reward or to induce female prison inmates to participate in sexual activity."
If you kill and eat a person you aren't mentally ill?
Who the heck would assault Stephen Hawking?
Some counties in California are lobbying for the Scott Peterson trial:
No sooner had her county been identified as one of a handful of possible trial sites than Ms. LeClair, a tourism official, was collecting business cards and pulling together promotional materials.

"I FedExed the package the next day to the presiding judge," said Ms. LeClair, president and chief executive of the San Mateo County Convention and Visitors Bureau. "It said that we understand that we are one of the spots; if you select us, here is some stuff to pass along to the media."
Now, that's tacky.
The Legal Reader takes note of shady behavior by a prosecutor.

Something similar to this happened to me about a month ago. I was representing client Smith with misdemeanor charges that were going to end up in a fine and suspended jail time. I had spent time talking to the prosecutor that day in order to work out the deal and was just sitting there waiting for the case to be called. After a hour or so the judge stepped from the bench and the clerk split the docket1, sending my client and about six others down to a different courtroom.

Before the judge comes out, I walk up to talk to the new prosecutor to make sure he knows the agreed upon deal. He looks down at the file and says he understands the deal and that he is going to have the deputies keep an eye on my client. ???? Curious, I ask why they would keep an eye on someone who is getting suspended time and who would be stupid to flee. At that point the new prosecutor tells me that they have other charges which they are going to serve on my client when he comes up to the bench.


After about 15 minutes of scrambling I, and the new prosecutor, figure out that my client is not the person who is supposed to be served the warrant. There was another person on the docket with the same last name and first initial whom the first prosecutor had confused with my client. Still, the original prosecutor negotiated a deal with me and let me sit there for over a hour knowing full well that he intended to have my client arrested as soon as our case was concluded. The implication being that I would go tell my client to run. Needless to say, these actions did not leave a favorable impression upon me.

1 This is done when one judge finishes his docket early and offers to help another judge who has a large docket.

18 January 2004

(Yet Another) Week in the Life of a Criminal Defense Attorney:

Sunday: Up past midnight writing a petition for appeal which has to be mailed on Monday.

Monday: When I arrive at the local courthouse I walk in and a bunker has been built over the weekend at the front door. I kid you not. There is an island made of kevlar walls and bullet resistant glass right inside the front door. All that is missing is a 50 caliber mounted machine gun. Because we all know that al-Qaida is going to do a frontal attack on a courthouse in Chesterfield, Virginia. Any moment now. Real soon. Maybe. Perhaps. Well, it could happen. Riigghht.

Once I'm in the courthouse I go to one general district court where the prosecutor drops an unauthorized use felony against my first client. However, I don't get any warm and fuzzy feeling from it - the prosecutor is dropping the Virginia charge so my client can be extradited to Kentucky to face his third strike. Then I go upstairs to the circuit court and walk into the courtroom I'm supposed to be in. I don't see my client (who has no phone and hasn't contacted me in about 2 months). I go out and walk up and down the hall checking the other courtrooms to make sure my client hasn't gone to the wrong place. I then ask the deputy at the back of the courtroom if anyone has been looking for me (no) and go look at the posted docket at the end of the hall. My client's name isn't on the board. Confused, I look at my PDA calender and the folder- both say we have court today. So I go down to the clerk's office and have them pull the case up on the computer. It turns out that they had tried to serve a show cause summons on my client and couldn't find him so a week before they issued a capias and took him off the docket. Hmmm . . . I've never had a court do that before.

I have no court in the afternoon but late in the day I get a call from Keith Jones, a fellow attorney, and he asks me if I'm going to be in court Tuesday morning on the Maxwell case. I already know that I don't have any cases scheduled for Tuesday but I check my calender just to be on the safe side. I tell Keith I've never even heard of this guy and he's not on my calender. Keith tells me that he thought he'd been assigned to represent the guy but when he checked the case online my name was the one in the Supreme Court's computer as representing him. That said, I then go and check my pending files and my "dead" files and find nothing. I look everywhere to see if a file might have been displaced or something but I come up completely empty. Finally, I call Keith back and tell him that to be on the safe side I will come to court the following morning.

Tuesday: I show up at court in the morning and there is no Maxwell case on the posted docket. I go into both the criminal and traffic courts and ask the clerk if they have papers on the case and they both say "no." Keith Jones is nowhere in sight. I call Keith's office and they tell me that he has gone to juvenile court this morning. Finally, I make one last check. I ask the deputies if they have shipped Maxwell to court today; they tell me they have and they have him in lockup. Then I go back to the clerk's office and one of the clerks is kind enough to look on the computer and tell me Maxwell is supposed to be on the docket. Then I walk out into the hall and Keith shows up (a hour late because another attorney in his firm had dumped a juvenile case on him). We go back to see Maxwell and I don't even recognize the guy's face so we agree that Keith will represent him. I go back to the clerk's office and ask them to find the papers for the case. They do so with little muss-n-fuss (it's amazing how efficient they are) and send them into the courtroom. Keith later tells me that his name was on all the paperwork; somebody just typed the wrong name into the computer.

No court in the afternoon so I spend the time doing paperwork. In the middle of copying a ton of things my copier breaks down. So I have to switch from lawyer mode into repairman mode (ah, the joys of being a single practitioner). The little lights on the front indicate that the problem is with the ink cartridge so I pull the cartridge out and shake it a couple times. It fixes the cartridge but it also proves the hypothesis that you shouldn't shake a copier cartridge when you are wearing your favorite tie and a $60 shirt (at least not if you want to wear them again in public).

Wednesday: I go to court and find out that my client cannot go into the drug treatment program he had been accepted into because he is homeless and nobody can find a place for him to live (client wanted to go into the program). So we go in front of the court and my client is found not guilty and ordered released from jail. Then I go to a second courtroom where the judge has already called my case without me and dismissed it because the prosecution didn't have its witnesses. I spend my lunch time negotiating with a prosecutor about a Thursday case. He agrees to drop one felony marijuana distribution charge against my client (if he'll plead to the second felony marijuana distribution) but won't agree to a specific sentence because the guideline recommendation is too low.

Thursday: I go to general district court and negotiate deals in two cases but before I can get my clients in front of the court I have to go deal with the circuit court case. It should be really short because I've already worked out the deal with the prosecutor. Nope. The client shows up a little late, I talk with him, and we sit in court for about half a hour waiting to get called. The prosecutor calls the case and moves for nolle prosequi on one of the charges. Then my client pleads guilty. In Virginia, before a judge accepts a guilty plea on a felony he questions the Defendant to make sure he understands. So the judge starts the questioning. About 2/3 of the way through the questions he asks Client: "Do you understand that the sentencing guidelines are only recommendations and not binding upon me?" Client looks very confused so we stop and I turn to speak to him. I'm whispering intensely into his ear when he cuts me off and in a loud whisper says "What's binding mean?" After a couple more seconds of whispering on my part, we both turn back to the face the judge who - having heard the question - is chuckling. Anyway, we get finished and set a date for the sentencing hearing about three months out. I hurry back downstairs where my clients are among the last left in the district court. I get the first before the bench. His driving suspended is reduced to driving without a license and his marijuana charge is reduced to paraphernalia (no jail time and his license wasn't suspended). The second comes before the bench and his driving suspended charge is dropped by the prosecution but his felony eluding is certified to the grand jury.

Friday: It's Lee-Jackson day so the courts are closed. I do some work from the apartment in the morning and take my dogs out to play with them. I waiver on whether I should go to the office for my open office hours because it is an official holiday and nobody's shown up for the last three weeks. Then I remember that the last time I skipped a Friday (26 December 2003) people showed up and were very upset that I was not there. So, I go in and what do you know two clients actually come by the office. TWO. That's almost a miracle.
Some States built more prison space than they can possibly use while others have not built enough. Consequently, prisoners have become a commodity.
A man is freed after a false arson charge was made by a person who has been previously convicted of making a false report to an officer.
An Evil Law School.

Which of course begs the question - Are there beneficent law schools?

Well, maybe this one.
Just imagine what you have to do in order to be treated like this in court:

Once upon a time, when I was an undergrad pursuing my dual major by doing things like comparative translations of texts concerning Abraham in the Quran and the Hebrew Testament1, discussions like these at Punishment Theory were what I expected to participate in once I got to law school.

Instead, I got the "Socratic" method which dumbs down the classroom to an amazing degree. Arrggg. By the time law school had ended my intellect had dropped to the level which I now inflict upon those of you unfortunate enough to read my blawg.

BTW - if anybody from Punishment Theory drops by here, please, PLEASE change the font. The page is very difficult to read.

1 I write this less as an advertisement of self and more as advocacy of the education you can get at Centre.
Hunting communists in China. Isn't that a baited field?
The Curmudgeonly Clerk argues that consentual cannabalism isn't torture - at least not as international law defines it.
SW Virginia Law covers all last week's criminal decisions in the Virginia Supreme Court.
Somebody doesn't like grand juries:
Grand juries . . . are antiquated legal bodies that go contrary to all notions of American law. They operate on the basis of guilty until proven innocent. There is no guarantee of unreasonable search and seizure when it comes to grand juries, and they have an extremely low threshold of evidence required to obtain a subpoena.

. . .

[G]rand juries should be outlawed like they have in most modern countries. They are contrary to all other notions of justice in this country—no right to the fifth amendment, no standard of evidence for subpoenas, secrecy, investigation of people instead of crimes, based on guilty until proven innocent, etc. Grand juries are solely tools of repression. They rarely come up with any answers when investigating crimes, and almost always operate with the intention to disrupt people’s lives. They are a tool of the political police when they have nothing else to use.
Don't really agree with the guilty until proven innocent part (although the standard is extremely low) but I must say that proceeding on an information is a far better way to go. Investigative grand juries are pretty much a joke, easily moved in a particular direction by prosecutors and the typical grand jury will indict someone on just about any charge a prosecutor tells it to. Prosecutors and law enforcement should do investigations without this screen to hide behind (or worse, manipulate). And getting someone indicted after his preliminary hearing in general district court is pretty much preordained. I guess what I'm saying is that grand juries are a vestigial remnant of the past. They served a valid function at one time but in the modern era are at best meaningless, at worst . . .

Of course, the two clients I've had who were "not true billed" might disagree with me about that.
Indian tribes are banishing criminals. It's an interesting solution. Maybe we should try it. Virginia could take the multiple conviction heroin addict on his last day of prison to the airport, give him a one way ticket to Utah (gotta be far enough away that he can't get back), and then make sure he's on the plane when it takes off. 'Course, Utah might not be too happy about that.
It's probably a bad thing if the police think of you every time a burglary takes place.

17 January 2004

Death & Politics:

(1) New York: The Legislature is holding hearings because the courts keep overturning death sentences.

(2) Two articles discussing the position of the Democratic potentials as to the death penalty. This one breaks it down by each candidate. This one has a more general discussion as to the reason.
Death - In the Courts:

(1) Seattle: The prosecution is being challenged because it did not pursue the death penalty with the Green River Killer (48 admitted murders) but is trying to get it in a case where one man was killed.
Choosing who should live or die has become an arbitrary decision in the prosecutor's office, argued one of Champion's attorneys, Jackie Walsh. In light of the Ridgway decision, she said, seeking the death penalty violates Champion's rights to due process, equal protection and cruel punishment clauses of the state and federal constitutions.

``The decision is an arbitrary one, and it's done in a capricious manner,'' Walsh said. A four-point set of standards adopted by the state Legislature nearly 30 years ago has failed to ensure the prosecutor makes fair decisions regarding the death penalty, she said.

Like Ridgway, she said, Champion cooperated with police by telling his family to speak truthfully to investigators. And unlike Ridgway, he has shown remorse.

(2) Texas: A man has chosen to represent himself in a federal murder case.
Death - Other Countries:

(1) Lebanon: For the first time since 1998 Lebanon has killed someone (actually three someones) for a crime.
"The restoration of capital punishment, after a suspension which has lasted almost six years, is proof of failure on the part of the state," Nasser Saghiyeh, a leader of Human Dignity, which groups four non-governmental organisations, told AFP.

"The president of the republic is placing the responsibility on the legal system, the prime minister on his colleague at the justice ministry, and both of them are saying it's the president who has the final say," Saghiyeh said.

"But in fact each one of them has the power to withhold approval."
(2) Manchester, England: A doctor killed 215 people before he was caught.

(3) Singapore: The government is not happy with an Amnesty International report. Here's a fact I didn't know:
Between 1994 and 1999, the rate of execution in Singapore was 13.57 per million population — far higher than second-placed Saudi Arabia (4.65), Belarus (3.20) or China (2.01).
(4) Samoa: The death penalty looks like it's on its way out.

(5) Nigeria: A call for the end of the death penalty because it is being abused.
Death - Alabama:

This #sshole not only got himself convicted of murder, now he's getting letters printed about it on the internet.
Death - Texas:

A Saudi Muslim killed a Moroccon Jew in Houston.

And then came the dreaded visit from Homeland Security (sans Defense attorney):
Homeland Security detective Bill Moore, who made the jailhouse visit to Alayed, told Reuters that Parnham was not contacted because the agency talked to his client about "jail security" issues that had nothing to do with the case.

"We routinely go over and interview inmates in the jail about matters not related to the case," he said. And they routinely do not tell the inmates' lawyers, he said.
Okay, that's just scary. And what does Homeland Security care about "jail security?" One might suspect that the Defendant could have been questioned about matters involving something like,oh, say, homeland security rather than whether the Defendant thinks that the jail does head count often enough or if the walls could be Shawshanked. Of course, why would you lie about something like that? As long as they don't talk to the prisoner about the charge in which he is represented law enforcement can come to the jail and talk to him. It may be a little slimy but it's perfectly constitutional.
Death - Ohio:

The State kills a man who did not go easily:
Four guards were needed to lift Williams from his knees and pry his hand off the edge of a table before carrying him into the death chamber. As he was strapped to the execution table he cried, "I'm not guilty. God, help me."

At least nine guards restrained him as they prepared his arms and inserted needles. One guard standing at his head alternately restrained him and patted his right shoulder to comfort him.

Williams repeatedly shook his head and tried to lift himself off the preparation bed. He yelled several times, then rested his head and spoke, appearing to whisper or chant quietly.

Williams kept pleading even as the warden pulled the microphone away after his final official statement: "God, please help me. God, please hear my cry." He was pronounced dead at 10:15 a.m.
Death - Connecticut:

Is it murder if the person refuses medical help which could have saved her?

Howard Bashman spoke at Harvard and here's the video. It's worth a listen (I say listen because the picture froze on my computer about ten minutes in).
One person fakes cancer it's interesting. Two, it gets a little disturbing.
A deputy is acting in official capacity when he kicks a prisoner in the eye causing partial blindness (as a jury found). Therefore, the county has sovereign immunity.

16 January 2004

You know something strange is going on when one of the jurors shows up with a bodyguard.
In a shocking development inmates in a riot have denied trying to harm guards.
Did you get your bid in on West Virginia?
Seems that there is some confusion in the U.K. about whether cannibis will be legal or not.
My first reaction to this was "Oh, boy! I can bash prosecutors?!?" My second was "Oh, c'mon! You gotta be kidding."

Does this guy actually believe that the poor, put upon prosecutors need a break in dealing with us evil, malicious defense attorneys? I mean, I know when I walk into a courtroom all the power is in my hands and everybody is biased toward believing me and my client instead of the policeman and the prosecutor. But that's just me; I hear that other Defense attorneys maybe don't quite enjoy the same advantages.


Look, the great majority of you prosecutors are decent folks but you really cannot expect me to feel sympathy on the one or two cases out of thousands upon thousands where the worm is turned. Take solace, as soon as you finish the hard case things will return to normal and all the advantages will return to you.
Hmmmm . . . What do you think a prisoner will do if he figures out that he can't be charged with escape if he can get out of the facility?
Thomas Ingrassia, 47, said he used the library at the Sexually Violent Predator Unit in Farmington to brush up on the law before he cut through a fence.

"Missouri's so quick to make up laws without researching whether it's proper," Ingrassia said in Friday's St. Louis Post-Dispatch. "They're idiots."
If you are going to streak make sure your getaway car doesn't get stolen.
Milbarge wieghs in on Lidster and more generally on courts and the 4th Amendment.
You gotts respect someone who knows probate law for the Shire.
Remind me (if I ever decide to break the law) to move to Greenland.
Bryan Gates wins a trial, but he's not too happy about it.

I don't care how upset you are about the verdict, you cannot corner a juror because you couldn't get a conviction.
Rule #1 of living life as a crook:

Don't rob somebody if he's on the phone with the police commissioner.
NYNY is going to flood areas where the crime rate is too high.
No wonder other States send prisoners to Virginia to be warehoused. It costs $100,000 a year to keep prisoners in jail in NYNY. I'd bet you could ship those folks to BFE Virginia (where the primary income producer is the prison) and keep them there for a lot less.

15 January 2004

In Virginia, if you're found in contempt you better make sure you shout the reasons for your objection to the contempt as you are being dragged off to jail or you won't have preserved your error.

Actually, this case isn't quite that bad. A lawyer files a motion alleging a lack of jurisdiction the day before a hearing. Then, on the day of the hearing he tries to say that the opposing party has waived any objection to his motion because it has not filed an answer. The court sort of looks at askance and tells him that the motion will be taken up after the hearing (BTW, for those who don't know, that means you lose). He persists in trying to get the court to rule on whether or not it has jurisdiction and eventually:
THE COURT: Have a seat.
[APPELLANT]: It's not proper to go forward on anything, Your Honor. I'm noting my objection to that case.
THE COURT: Well, what I'm going to -- listen, let's get something straight. If I want to hear from you, I will ask you to talk. I don't want to hear from you right now. I want you to have a seat, and I want to hear from [opposing counsel]. Sir, if you open your mouth again I'm going to hold you in contempt of court. Do you understand that?
[APPELLANT]: Your Honor --
THE COURT: That's $100.
[APPELLANT]: Your Honor --
THE COURT: That's $300.
[APPELLANT]: Your Honor --
THE COURT: That's $500.
[APPELLANT]: I'm obligated under the --
THE COURT: That's $500. I will do an order later. . . .
[APPELLANT]: Your Honor, I'm obligated under the Constitution of the United States --
THE COURT: Sir, I'm going to have you removed from the courtroom if you don't be quiet.
[APPELLANT]: Your Honor, if I can just --
THE COURT: No, you may not. Be quiet. Sit down. Are you
amused by something?
[APPELLANT]: Well, Your Honor, I believe that it -- I actually find it irregular in this case where someone is trying to put an objection on the record for the Court to tell him he can't do that.
THE COURT: You already put the objection on the record, and all you're doing now is talking when I told you not to.
[APPELLANT]: Your Honor, I've asked you to respond to the record, which I believe -- respond to the objection, which I believe --
THE COURT: You're up to $700. If you want to go for more, that's fine. You can deal with it with the Appellate Court.
At this point even the dimmest of bulbs has got to know that he's not going to get to talk anymore. Heck, if there is that much ire directed at him he has to wonder if they might even dust off the old plenary contempt and see if they can send him to jail for longer than the 10 days allowed by statute. There is no way he's going to be allowed to state the reasons for his objection to the contempt. Still, the appellate court refuses to address this on the merits because he has not preserved his reason for the objection.

C'mon, just rule on the merits. It's not like this conviction's going to be overturned. What's the worst that can happen? You send it back to the court reversed as to sentence with an instruction to reduce the fines to the maximum allowed by law. I don't think even a lawyer could claim that as a moral victory. Although, I do know some guys who wear their contempt citations as badges won on the battlefield. Of course, these are the same guys who will tell you that you aren't really a defense attorney until a judge has sent you to jail for contempt (in which case I will be one of those individuals who will strive never to become a "real" defense attorney - I'll just try to become the best damn lawyer in the courtroom).
Okay, here's a judge who really, really doesn't trust the media.

The Martha judge is not allowing media to view voir dire
because he thinks member will name names and reveal what people said.
More corruption in Richmond.
If you're in prison the constitution says you can get your comicbooks but you can't get porn or D&D stuff.
Wow. If you live in or enter into D.C. you give up your rights as a citizen of the United States. Or at least you can't be part of the militia.
Not sure what class it is that Mike Adams teaches but it sounds pretty interesting and it riles up others on the teaching staff.

I think this story indicates there was a slow day in the newsroom.
Further reactions to Lidster:

The case is here. Here is my reaction.

TalkLeft --- Vice Squad --- Crescat Sententia

For what it's worth - I agree that the reason the 4th Amendment has been shattered is that almost every time a case comes before the court it involves a Defendant who is undoubtedly guilty but who cannot be convicted if his constitutional rights are upheld. We all know the old truism that "hard cases make bad law." It takes a confident court, dedicated to long term protection of liberties, to stare down its nose and issue a ruling which will free someone whom everyone knows has committed a crime. Most of the time the judges and justices blink. They will stretch, contort, parse, or expand the law until it is bent so badly out of shape that it bears no resemblance to what it is supposed to mean.

On its face, the 4th Amendment reads as a rule followed immediately by instructions as to how the rule should be applied. I have a right "to be secure in [my] person, house, papers, and effects, against unreasonable searches and seizures" which can only be superceded by a warrant issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It seems pretty clear that you need a warrant to search or seize me and it is supposed to be fairly hard to get that warrant. Of course, at the very least that vitiates everything from Terry onward. It's a very high standard and one which has absolutely no chance of ever being enforced in court.

Why has the federal constitution been the subject of such twists? Because it has been bent to a purpose for which it was never intended. The States are the ones who are supposed to be making the rules as to how criminals are dealt with through their laws and constitutions. The federal constitution is meant to be particularly restrictive; it is meant to check the power of the central government (which was never meant to go into law enforcement). However, the application of these standards to the States and the growth of federal law enforcement have both led to pragmatic departures. Each departure is well reasoned and justified; after all it only goes a little further, it's a matter of common sense, or it's just a minor exception (which quickly becomes the rule). Now we have police crashing down doors - without any reason - if you don't answer quickly enough, we have people getting arrested for "trespassing" on public streets, we have police with the ability to stop cars wherever and whenever they want to - for extremely minor reasons - in order to shake down the driver, and we have police setting up roadblocks so that they can arrest citizens whom the officers don't even have a previous reasonable articulable reason to question. Each decision standing alone might be justifiable somehow but when you stop taking a myopic tree by tree view the forest starts to look pretty dark and foreboding.

I must say that this strikes me more as culture shock than an actual analysis of the reality. It reads like he got there and was shocked that he got the tourist treatment during his week in Egypt and (I assume) short time in Mecca on a haj. What can you expect?

Did he learn to shop at the stores in the neighborhoods rather than the suq (where they charge Arabs 5 times more and jack the price for gullible Americans even higher) or even to have the mandatory argument over prices (something Americans seem genetically predisposed not to do)? Did he get to know any of the Egyptians well? Yes, they are living poor but they have an amazing "we're all in this together" sort of attitude. Many are amazingly well educated. They have a pride in their history and a dedication to their country.

Mind you, I would not want to live in Egypt permanently myself. It is a semi-democratic, semi-open country. While it is the only country in the Middle East where I saw an opposition party member making a televised speech against some presidential policy, I have no delusions that there is any chance that the President will ever be "voted" out of office. Likewise, while the London Arabic papers were available the vast majority of citizens probably only saw the local papers which were subject to heavy government influence (mind you, the large number of Egyptian papers/magazines is a testimony to the literacy rate).

And there is an ongoing conflict with various radical Muslim groups posing a continuous threat to the very existence of a modern Egypt.

However, I am enough of a realist to realize that the primary reason I, and other Americans, couldn't take living there is the lack of wealth. While the people and government seem capable of providing necessities and some simple luxuries it is a far more austere world than ours. There are no opulent, overstocked malls. Few families, much less individuals, can afford a car. No 200 channel cable or 36" TV. No grocery stores with so much food that spoilage is a problem. Yes, I know this is petty but in the real world these are things people miss the most - Americans absolutely go into culture shock when they enter a society where such things are not available.

It took me at least 3 months to start becoming significantly acclimated to a culture which is so radically different and I spoke the language.

Personally, I always thought that Egypt was the best hope for the Middle East. I guess I always held out hope it could go through a transformation much as Mexico has done allowing other political parties to actually rise to power. In my opinion, it was the horse to back in the region. Realpolitik has rendered that opinion moot now that we have Kuwait and Iraq as client states of the American Empire. I don't disagree with the steps that we have taken in Iraq; I merely view the option of making efforts to bring ourselves into a closer relationship with an Egypt as an alternate path not taken.

14 January 2004

Wow, the rule of thumb is still extant in some circles.
The continuing weirdness of DUI's:

In New Hampshire a person is charged with DUI for riding his bike. And here's a discussion over at Curmudgeonly Clerk about a DUI for being in a mechanized wheel chair.
Scamming $78,000 from 9-11 charities.

I particularly like this:
The judge told Weissman he would get help in jail. Reminding Weissman, "You are a heroin addict on methadone," Bradley said correction officials had assured him they have several programs that can help Weissman.
Well, I don't know about New York but I can vouch for the fact that Virginia has a program that works extremely well. It's called Cold Turkey and boy is it fun meeting with a client who has been put in jail within the last two weeks and is experiencing the joys of the program.
What exactly is meant by "concealed his ties to terrorist causes when applying for citizenship to the United States a decade ago?"

I assume it means some sort of active participation took place - not that Uncle abu Milak was someone the Israelis suspected he was in a PLO cell.

Ladies and Gentlemen, I give you the Professor Roger Groot bobblehead doll. Apparently Washington and Lee Law is selling these to raise funds. Scary.

For those of you who don't know, Professor Groot splits his time between running the Virginia Capital Case Clearinghouse and terrifying 1L's in criminal law and procedure classes. I ain't never seen so many kids scared of one man in my life as the 1L's in his first semester, first year, 8 a.m. Criminal Law class were of this man (well, with the possible exception of the Drill Sergeant in basic training). On the other hand, once he teaches you you stay teached. Heck, I can still recite the common law elements of burglary by heart and he wasn't even my criminal law professor. My roommate (who was in his class) repeated them (and the elements of many a crime) so many times that eventually they even stuck with me.
The Supreme Court has decided that police can seize you without a warrant and without suspicion that you have any involvement or knowledge in anything criminal in order to perform a investigation of something that happened a week ago.

There's always something that happened a week ago
: a bank robbery, a murder, a stolen car, a mugging, somebody jaywalked, etc. And gee, wouldn't the police like to get information about the [fill in the convenient excuse].

I really can't say I'm shocked. I wish I could, but I no longer believe that you have rights if you choose to drive your car. The courts allow pretext stops on the most transparent of technicalities. The courts are the only place where anyone thinks that a citizen has a choice when an officer "asks" him to exit the vehicle. The courts tell us that if an officer hands you your license back and immediately starts to question you - you can just drive off and leave him standing on the side of the road. And since Reittinger, the courts I practice in have been of the belief that there have to be two law enforcement officers or my client could not possibly have been intimidated by a single officer with a badge, gun, uniform, and flashing neon lights (at 3 a.m. on a dark, lonely stretch of road).1

The courts allow officers to set up road blocks to shake down citizens about whom the officers have no information (not even reasonable articulable suspicion). First these were allowed under the pretext that they involved traffic safety. Now they are allowed because something happened a week ago.

Not that this will often affect me or thee. I daresay that most of the people reading this don't live in low rent trailer parks or motels in the bad part of town. So police will not be setting up roadblocks outside the one road leading to our subdivisions or apartment complexes. And since the great majority of the effect will fall on lower economic classes it must be valid, right? After all:
"The Law, in its majestic equality, forbids the rich, as well as the poor, to sleep under the bridges, to beg in the streets, and to steal bread."
At least it will bring more clients to my door. Good to know the Justices are looking out for me.

1 Mind you, the officer's ability to intimidate someone both as an individual and a representative of a powerful organization is one of his most necessary tools in keeping himself alive at 3 a.m. on that lonely stretch of road when he pulls over a group of young males with a couple sawed off shotguns (actual case). I want the officer to have this at his disposal. I just get plain tired of courts ignoring the fact that it exists when the officer uses it in order to coerce car occupants into allowing a shakedown search without any indication of wrongdoing.