31 October 2004

Scott Peterson - The Jury Instructions

The judge in the Scott Peterson case has ruled to allow a second degree murder instruction but not a voluntary manslaughter instruction. Admittedly, I have not followed this case extremely closely but my understanding is that the physical evidence of anything happening is almost nil. In such a circumstance I do not understand how the judge can decide to exclude the manslaughter charge.

Second degree murder is defined in California's penal code sec. 189 by what it is not and this seems to mean that it is not premeditated. Voluntary manslaughter is defined in California penal code sec. 192 as "the unlawful killing of a human being without malice, upon a sudden quarrel or heat of passion." Both sections can be found here.

I could spend the next two hours researching California case law to see if I can find the exact difference between those two statutes in California but I'll leave that to California lawyers. So you're going to get my very basic understanding of the difference between these two statutes: not a whole heck of a lot. But, you say "malice" - there must be malice in order to convict of second degree murder!

Sure there must. But malice in a second degree murder is begging the question. To prove malice you are pretty much going to have to prove "aforethought." Or, in more modern language, in order to prove malice you are going to have to show premeditative acts.

As an example, let's assume a set of circumstances.
Husband comes home and confronts wife while she is washing the dishes: "You whore, I know you've been sleeping with my boss!" They start screaming at each other and she takes the knife she was drying and stabs him in the heart.
If she did this out of pure animal anger, with nary a thought until she is calling 911 in a panic, this is voluntary manslaughter. If she thinks to herself "I've got to do something. This can't get out." and then plunges the knife into his heart, that's first degree murder. At least it is if California follows the rule that premeditation can occur the second before the murder (which I understand to be the law in most places).

So what is 2d degree murder? Technically it's malicious homicide without forethought. If you cannot prove forethought through some sort of action how do you prove malice? If you convince people that malice exists they are going to be convinced that a second of forethought exists (if nothing more than "I'm going to kill you, you son of a buck!"). With that in mind, 2d degree murder becomes an option to offer a jury (or judge) which isn't all that comfortable with convicting someone of a crime which we all know would subject him to death or life in prison.

So basically, 2d degree is homicide without real proof of actions indicating a malicious intent to commit murder. This is pretty much the same evidence which would support voluntary manslaughter. Again, how do you not give these instructions simultaneously?

30 October 2004

Around the Web

1) In Virginia Hammoud precludes the federal prosecutor from adding extra sentencing factors in the indictment.

2) Attorney, thou shall not steal from thy clients.

3) A Texan asks a judge to let him be killed.

4) An attorney calls out a judge. Gotta say, I suspect the questions from the prosecutor must have been a little less clear than the one proffered (although it is actually two questions and therefore not proper).

5) Judicial shenanigans in California.

6) Ramadan, Muslim kids, and police in the U.K.

7) Mexican workers arrested in Virginia; must be Tuesday, or maybe Wednesday, perhaps Thursday or maybe . . .

8) No matter how tempted you are, it might not be in your best interest to shush someone during a French cartoon movie. However, it is probably an even worse idea to beat up the shusher.

9) MC Estoppel needs a job in the NY, NY area. I can't help since the nearest thing I could offer would be an eat-what-you-kill position in Virginia but I thought maybe someone out there might know more about NY than I (my main knowledge of NY City being that if I am on a cattle drive my Salsa had best not be from that city - "New York City?!? Get a rope!").

10) Mr. DA further elaborates on how warrants are issued. I would make one comment on his jury "nullification" section: yes, juries have the right to nullify however it is verboten for them to be told they have this right. If I make a jury nullification argument in court the prosecutor will object and the judge will, very sternly, instruct the jury that they are only to decide the facts, not whether the charge is a just application of the law.

11) How a Texas jury makes its decisions.

12) Just remember, if the neo-prohibitionists get their way priests won't be allowed to drive from one church to another in order to celebrate mass. I wonder if the argument that it's not actually wine would hold up in court (its reality having changed with only the accidents of its form remaining the same).

13) It looks like PDD is coming to the private sector (they must have tempted him with promises of a yacht and his very own Stately Wayne Manor).

14) Going back to ice the bird probably wasn't too bright.

15) I'm a PD is now working DUI's and getting trouble from people who really aren't indigent. Blonde Justice feels her pain.

16) Waddling Thunder wonders whether jurors understand the jury instructions. In reply all I can say is go watch a jury being read the instructions. They will try hard to keep their attention focused for the 20+ minute monotone reading of the instructions by the judge (and that's in your basic criminal trial). But the instructions have the virtue of being impossible to focus on for that long. I always suspect that after the judge sends them back to the jury room with a copy of the instructions they spend the first 30 minutes rereading the instructions to try and figure them out.

17) And finally remember, this Tuesday you will be faced with two simple choices: Vote or Die.

LvJoshua C.

29 October 2004

Off Point: Warning Signs of the Apocalypse - Brought to You by the Letter "B"

First there was Blakely and a federal court actually ruling that unconstitutional guidelines are unconstitutional. This raised the first first feeling of uneasiness.

Then I went to my 20th year Bryan Station high school reunion. There I met my best friend from high school. When last we saw on another he was a dyed in the wool Baptist who didn't drink or dance, and he was living a most straight-laced, wife and two kids, white picket fence life. Now he's getting divorced, he bought the beer and brought the good bourbon, he got a little snookered, and danced the night away with other fellow's wives. It was a subtle sign which I'm sure a great many of you missed.

Next came the Bengals winning a Monday night football game. Now, I'm a Bengals fan but I'm pretty dawg-on sure that this is what is supposed to happen right before the trumpet sounds.

Finally came the on definitive sign which no one can deny. Boston won the World Series. It's over folks. The seal has broken a dragon is loose and these four are riding over the horizon:

The painting which this post parodies can be bought here

It's all over Ladies and gentlemen. I'm going to go home, hide under my bed, and wait for the end.

A Week in the Life of a Criminal Defense Attorney

Monday: Okay, all sorts of cool stuff took place on Monday but the computer ate it and it's too large to type in again. Sorry.

Tuesday: In the morning I have a possession of marijuana case. Client has never been convicted of marijuana before and that usually means a suspended jail sentence. However, the prosecutor doesn't want to offer anything less than the 30 day max because my client has previously been convicted of more serious drug offenses. So we do a naked plea and try to convince the judge that Client should get the typical first disposition. It doesn't work - the judge gives him 30 days (15 to actually serve). It's not really too bad; Client chose not to bond out and has already served over more than that waiting for trial.

Wednesday: I spend the day trying to catch up on paperwork. I'm not sure I made any kind of significant dent in the pile but I tried.

Thursday: In the morning I have a lady who is returning to court to see if she has completed the alcohol program she was required to enter. She has not because she got another DUI and has moved across the Commonwealth. She is about to re-enter a similar program because of the new conviction. Still, the judge gives her 4 days to serve on weekends (actually one weekend). She's tickled pink.


In the morning I have two cases. The first is a client accused of having drugs in jail. The prosecution has not gotten its lab report back yet so the judge grants them a continuance. It doesn't really effect my client too much because she is serving a sentence while waiting for this trial.

The second case is an 18 year old kid accused of stealing all sorts of stuff. Not much doubt about it. There are fingerprints, stuff found by the police, stuff found by the staff of Client's halfway house, and a confession. Still, I get the prosecutor to drop three charges (three felonies get certified to the grand jury).

In the afternoon I have to attend the first day of a federal CLE which is mandatory for those who are on the federal court appointed list. It starts out with someone from the federal PD's going over Blakely. Not much said that I hadn't seen a loonngg time ago at Sentencing Law & Policy.

Then we got a lecture by the head of Pretrial services and another PD about how we should contact pretrial and our client before we first hearing. Of course, we're all sitting there thinking that this is great in theory except for the fact that most of the time the call from the clerk gives you such a short time to react that it just ain't gonna happen. The PD pointed out that there is something out there called PACER which is supposed to let us get info about our clients. I'm going to have to figure out what that is if the federal court ever gives me another case.

The next lecturer is talking about the guidelines. It's a power point presentation (which is a bad thing) but she does start out giving us some useful information like the Sentencing Commission's web site (www.ussc.gov), where you can get all the various permutations of the guidelines over the years, and the number for the helpline (202.502.4545). Then she went through various possible applications of the guidelines depending upon when the alleged crime occurred and different applications of the various upward sentencing "enhancements" (for instance, if your client walks away from a halfway house it is a crime of violence). The lecture started to go long and the room started getting really warm. I, being the idiot I am, have chosen a seat on the front row and I'm fighting like crazy to keep from falling asleep; the lady must have thought I was nuts because I kept shifting my seat and moving my head so I wouldn't doze off.

After a short break (during which somebody cranked the air) we restart with another guidelines lecture. First we are spoken to by a probation officer who knew the guidelines so well she spoke in a bunch of numbers and letters which I'm sure made absolute sense to her but left my head spinning a little. Then a lawyer got up and went over the firearm enhancements. The most disturbing part of this was being told that, at least in the 4th Circuit, the Defense must prove that the connection the drugs and guns alleged by the prosecution is improbable (can you say burden shifting boys and girls? I knew you could).

Next we were spoken to by a judge who tells us that he originally found the guidelines unconstitutional way back when they were first put in place but that appellate judges didn't agree with him. He basically asks us to bring more arguments in front of him as to various sentencing factors, in particular as to drug weight and amount of a fraud. It's a nice thought but not really all that practical considering the ability of the prosecution to punish a federal Defendant for doing such a thing.

After a short break we are addressed by a few more people about the guidelines. Another judge addresses us and tells us that he wasn't around when the guidelines came into existence but he thinks that in a number of cases they are too harsh. He outlines the Rybicki, 96 F.3d 754, 5 part analysis to see if a departure is allowed (my impression was OMG how does anybody qualify under that analysis?). He goes on to remind us all that there must be a "principled ground of departure." Basically these are criminal history departures (i.e if your client's entire prior record consisted of reckless driving and habitual offender traffic offenses), medical reason departures (which elicited from a lawyer the warning "but remember BOP will always claim it can handle any medical condition"), and the combination of factors departure (a bunch of factors, none sufficient of and by itself).

A couple more people spoke. A federal prosecutor got up and went over some enhancements. Most of it was typical stuff about guns and violence. However, one part did stick out. It's a power point presentation (again, a bad thing) and as one slide flashes up it lists a number of factors which she then tells us out loud, except for one. The last enhancement listed was 18 USC 117 "White Slavery." You've got to be kidding me?!? "White Slavery"?? The only reason I can think of that this term is still used is because it has become a term of art. That's got to be it. Either that or there's still some really interesting (and very wrong) statutes out there. I can just see the argument now: "That doesn't apply to my client, your honor, he only transported oriental women to Virginia for prostitution. There was nary an occidental woman in sight." Think I could get a strict construction of that statute?

Oh yeah, we also found out that the 4th Circuit has ruled pick-pocketing (larceny from a person) is a crime of violence for enhancement purposes.

Then came the most joyous moment of the day. A PD from the D.C. office came in and talked for a while. He called us all out. Basically he said, in a less direct manner, that we were all slacking because the rate of downward departure in our district is a third of what it is around the country. A lot of heads kind of snapped up when he said that but everybody held their collective tongues. The only person who said anything was the judge who pointed out the fact that we are in the 4th Circuit might have a lot to do with the fewer downward departures.


Yes Saturday. I stumble out of bed and drive over to go to the next day of the mandatory federal CLE. I'm not exactly thrilled to be there at 9:00 a.m. on a day when I should be in Kentucky at Centre's homecoming. I sit in the back 'cuz I'm not really all there.

I must admit that Saturday didn't get the scrupulous attention (and copious notes) Friday did. So you're only going to get the things that were interesting enough to stick in my mind.

The lady who came to tell us all about federally approved interpreters was commenting upon social differences between U.S. and Hispanic cultures. She gives as an example the fact that most people in the U.S. have only one surname. She then goes on to explain that Hispanic cultures combine the surname of the father and the surname of the mother. She finished by saying that not having two last names inferred that one only had a mother. The Cuban-American sitting next to me (with only one name) leaned forward to the Argentinian-American sitting in front of me (with only one name): "Did she just call us what I think she called us?" To which the other answered: "Yeah, well I've known I was a bastard for years now."

A little later in the morning a judge who now sits in our district is commending to us the idea of open files and tells us, "When I was the U.S. Attorney for this district I always told my prosecutors that if there was any question as to whether something was required to be turned over under Brady the fact that you are asking the question means it does."

Shortly after the judge finished speaking an attorney stood before us and, as the judge sat two chairs downs from him, expounded upon what we needed to be doing better and said he realized that it was hard to do anything in the federal courts "because the judges are the whores of the prosecutors."

Later in the day we were regaled with the story of a couple of defendants who were (if I'm remembering it all correctly) found not guilty of murder in Virginia. Then they were charged with drug and murder charges in the federal system. They were again found not guilty of murder but guilty of the drug charges. Guess what they were sentenced for? Yep, you got it: they were sentenced for murder.

The low point of the day came when the Managing Assistant US Attorney for the Richmond office came in to speak to us. He starts out by breaking down how many AUSA's are in his office and then transits into a point he really shouldn't have been making: don't destroy your credibility with the prosecutors by filing frivolous motions or fighting unrealistic battles.

We had spent the last day or so being told we aren't doing enough, that we need to argue more motions, that we need to file more paperwork, that there must be something we can do to keep our clients from getting a raw deal, etc. Somebody should have told him that before he started speaking because it was not a crowd which was prepped to be receptive to what he was saying.

To be fair, the point he was trying to make has some merits. In a case with an actual 4th Amendment issue you approach the prosecutor differently than in a case where the prosecution has 20 witnesses, a videotape of the robbery, dye pack ink on your client's clothes, and a confession. Handle all the cases the same way and it is unlikely that prosecutors will listen when you actually have something to say to them. However, that will always be a delicate point to make; even a Defense attorney has to walk on eggshells when he says something like that in a crowd of Defense attorneys.

The prosecutor starts talking about this and grumbling starts in the crowd. He pushes forward and at one point actually says the office keeps track of the Defense attorneys by the motions they have filed; I know that focused my attention. The grumbling got louder and still he pressed on. Finally a lawyer in the back snapped and loudly told the prosecutor he was wrong - that it is not our job to choose who gets a good defense and who does not. Then a lady toward the front told him it was obvious he had never been a Defense attorney because he didn't understand that these motions and filings are often done, even in losing causes because we know the bar complaint will be forthcoming. Down the row someone started heckling in stage whispers. People stopped paying attention and many there was a lot of traffic at the doors. It was bad.

There were other lectures but the remainder were rather mundane compared to that.

[CLE comment] There were some themes which came through:

(1) Judges would like to hear more argument over factors etc.

It's unrealistic under the prosecutorial controlled federal system but I can understand why they'd like us to do some of these things and put a little more control back in their hands. While I would not go so far as the attorney above I've gone as far as to say that it seems the Congress has relegated federal judges to clerks for the prosecution.

(2) More than one non-PD lawyer basically said that the real place to practice law is now in the State systems. Nobody quite said that the federal system is now the bush leagues but the clear implication was that the federal system has become a place where so much power has been shifted into the prosecutor's hands that the law really doesn't matter so much.

Things I noticed:

(1) I had to watch a tape of the last one of these CLE's when I first started taking federal appointments. It was striking how the last time it was run by and the lectures were done by prominent local attorneys and this time it was clearly the PD's show.

(2) I was surprised at the low turnout. This was a mandatory, come or never get another appointed case, CLE. The room was nowhere near full. Now, they were taping it. I missed my college homecoming because this event was scheduled on a bad date (why not do this in February, nothing is going on then). If all sorts of people just didn't come for whatever reason and are allowed to just take the tapes to their office and "watch" them . . .

All in all it wasn't that bad of a CLE. The one put on by the State Bar's criminal section and the ones put on by the criminal bar are better but I got a fair amount of knowledge out of this one. Now if I can just get appointed to another federal case so that I can apply it.

27 October 2004

Comments on Texas & Juvenile System

Yesterday I published "Texas Yet Again." It brought this comment:
I can understand why the guilty man headed for a life sentence wouldn't enjoy his going-away party especially since he had been a fugitive from justice for a year. But, there will be few Texans who are much concerned that the judge celebrated his return to her courtroom. On the contrary, the average citizen of the Lone Star State feels much greater grievance at what criminal lawyers like Lott Brooks do.

Brooks requested five extensions and ignored twelve past-due notices in filing a brief with the 14th Court of Appeals. He finally submitted an "Anders brief", an admission that his client had no basis for appeal. He freely admits that he filed the extensions and ignored the notices to keep his client, who had pled guilty to aggravated sexual assault of a child, out of prison on appeal as long as possible.

The judge of the appeals court ordered Brooks arrested and sentenced him to two days in jail and a $500 fine, citing Brooks's abuse of the appeal process. (For his part, Brooks attributes his penalty not to his conduct but to racial prejudice.)

Half of all juvenile court cases in the USA are dismissed because the victims do not testify. One of the main reasons for this is that the public defenders who handle 90% of such cases exploit the legal system's burden on witness by stalling tactics like Brooks's. They file continuance after continuance, wasting days and days of the victim's time. When and if the case does come to trial, the PD requires the witness to testify that he really didn't give the defendant permission to break out a window in the victim's car, hack the dashboard open, bypass the ignition, steal the car and set it on fire.

The Texas criminal legal system might not be as good as that of Virginia, as you claim. But, most of the citizens of either state are more concerned about the safety of their lives and property than hurting the feelings of a man who nearly strangled his girlfriend to death.
First of all, I don't know whether the Texas legal system is better or worse than Virginia. Do I poke fun at Texas on occasion? Yep. I don't know why but Texas always seems to have something kind of unusual going on. It's probably just because it is a big State with a lot of people so there's a lot more chances for things to happen. It's just that whenever I get really, really depressed about what I see happening legally in Virginia I can always Google News Texas and find something which makes me feel better.

Beyond that, I have no idea who the attorney mentioned is but here's an article about it so you can all judge yourself. Personally, I believe blatant delaying actions by an attorney at the appellate level are rare. All attorneys are asked by some clients to engage in delaying tactics. Nevertheless, most of us won't do it simply because the client tells us he doesn't want to go to prison. On the other hand, I have been required by court appointed clients to file petitions for appeal which I think the client is pursuing to put off going to jail / prison. However, none of my clients has been dumb enough to tell me that and I have never, ever filed an Ander's Brief. Never had to because every one of my appeals has had some sort of legal argument.

As well, delays in trials in order to get rid of witnesses probably happen in a small number of cases but I suspect this is more myth than reality. Competent courts just aren't going to let this sort of thing occur. The Defense might get away with one continuance on shaky grounds but the judge isn't going to play that game for long - he will force you to trial. The perception that Defense attorneys take this route is probably based in the fact that in major, intricate cases the Defense often has to continue the case in order to prepare witnesses, investigate, get the proper experts, &cetera. Remember, the police and prosecutors can take a long time to prepare everything before they file a charge. The Defense is usually going to have to do everything after the client is charged. Because of speedy trial limitations a court will set court dates before the Defense can possibly be ready and it will be forced to ask for continuances (waiving speedy trial).

I do not know if the 50% dismissal of juvenile cases is true and I do not know what is exactly meant by "juvenile cases." If it means all cases involving a juvenile I suspect the percentage may be even higher because a just juvenile system should have a safety valve of some sort so that kids who get in fights with other kids or take a stick of gum when their mother wasn't looking don't get a criminal record (particularly in this era of non-sealed, non-erased juvenile records). If it means adult sex and/or violence on a child I wonder about the percentage. Of course, there will be a significant percentage of children who could not testify because they are simply too young. There is also the fear of brainwashing that we all realize happened in the recent past. Still, prosecutors show a zeal for prosecuting these types of cases which you seldom see elsewhere. I must say that I find it hard to believe that they let 50% just fade away.

And a PD who requires the complaining witness to testify that a crime actually took place really doesn't bother me all that much. Sorry that's just my perspective as an evil Defense attorney.

Back to what began this all - The man for whom the judge in Texas threw a party. He was going to prison with that massive sentence one way or another. It is simply unprofessional to do something like this. It's funny but unprofessional. I've stood in front of any number of judges who have been angry at my client for one reason or another. I've seen clients lectured, yelled at, spoken to sarcastically, and oversentenced because they did something dumb which caused the judge to unload on them. I've never seen anyone go through something that elaborate in order to humiliate a Defendant.1 I expect I'll never see anything like this in Virginia; our judges have too much of a sense of propriety for that kind of behavior.

1 And personally, I have no problem with humiliation being part of punishment as long as it serves a purpose. If you force men at a jail to wear pink coveralls and work road detail in plain sight of everyone it discourages people wanting to act in a manner which will land them in jail. If you make someone stand mute in front of a store with a large sign saying "I stole from this store" it discourages that sort of activity. This party accomplished little outside of simply poking fun at the man. He's going to prison for life so his behavior won't change and those whom he tells of this are likely to be long termers as well. What good was accomplished?

26 October 2004

Forensic Science Hall of Shame

Going thru the internet trying desperately trying to find an appropriate expert for my case I tripped upon this site which outlines the failures of various forensic experts in the courts.

Texas Yet Again

As always, when I get upset at how bad things seem to be in the Virginia criminal legal system all I have to do is look to Texas and realize it could be much worse.

Qualifications to be Chief Justice

You must have empathy for those accused:
In one instance, young Fred's sympathy for one inmate got carried away, even in the eyes of the would-be beneficiary. It happened when he was four years old. Fred, recalling the incident years later, said, "There was a prisoner to whom I took a liking. I decided he didn't belong in jail. He hadn't told me he wanted out, but I made up my mind I'd help him escape. I got hold of my father's hatchet, and one day when no one was looking, I walked up to his cell and slipped it through the bars to him." The prisoner, though, was an unwilling participant in the plot. Calling out to Fred's father after the youngster had departed, he said, "Jim, here is a little present your boy just gave me. I figured you would like to have it back".
Chief Justice Fred M. Vinson of Kentucky, p. 6

25 October 2004

Around the Web

1. PD shenanigans.

2. Can friendship survive a friend becoming a prosecutor?

3. I know how these hearings come out when my client is being filmed by an officer with his window open but I gotta admit I was a little surprised that what's good for the goose . . .

4. The trial of the soldier who killed fellow soldiers has begun.

5. Orin Kerr, THE reason to read the Conspiracy, is the only person in the world who could find a record of Ashcroft defending civil liberties..

6. Interesting legal decisions in a sex abuse case.

7. Freespace on substantive due process. It's interesting but looooooonnnnnggggg.

8. The ACS Blog discusses the stare decisis position of its version of the devil incarnate, Clarence Thomas.

9. This is why dogs are men's best friends. Reno is a helluva K-9.

10. Ah, to have been the attorney who raised the objection against the prosecution copulating the evidence.

11. Thanks to Professor Bainbridge for reminding us all that it is St. Crispin's day. And lest we all forget, it's not just about Shakespearean play (with an amazing speech that can even reach those not British). On this day, in 1415 A.D., a starving English army of perhaps 6,000 destroyed a French army of at least 20,000 in one of history's most amazing victories.

The Difference

The difference between a court appointed attorney and a "paid" attorney:

A preliminary hearing hearing is scheduled for today. I represent one defendant and a top-flight attorney1 has been hired to represent the other defendant. The hearing gets continued (over defense objections) for two weeks because one of the prosecution's subpoenaed witnesses has not bothered to come to court.

I turn around and walk back to the lockup with my client. The paid attorney turns around and walks back out of the courtroom with the family (while his client goes back into lockup).

---------- ---------- ----------
1 Not kidding here. The guy is one of the two or three I'd hire if I got into trouble.

21 October 2004

Kentucky Courts

As ya'll know, a while back I went back to Kentucky so I could go to my 20th high school reunion. While in town I went to go see the local courts in action.

The first thing I notice is that the courthouses are almost empty. As I walk through the 5 story tall general district courthouse and then the identical building next door for the circuit court, I don't see any officers and only one court is open (in the general district court). So, after exploring for a while I go into the open courtroom.

It's different than Virginia. For one thing they are speaking some strange language - referring to things like "warrants" and "dismissals without prejudice." Nary a Latin phrase to be heard. How can you practice law without speaking Latin? People might actually understand without a lawyer to translate. The HORROR!!!

They also have actual arraignments during the first pretrial hearing. So everyone is standing there giving the pro forma "not guilty." Kinda silly. I don't know how much time there is between serving papers and the first hearing but lots of people already had a lawyer (almost unheard of in the Virginia jurisdictions wherein I practice). Those who had lawyers had their cases called first and, after pleading not guilty, had their next date set. Those with preliminary hearings for felonies had those hearings set at one time and those with misdemeanors had “pretrial conferences” set at a different time.

I go sit in on one of the pretrial conference times and the court is packed. The prosecutors and Defense attorneys are doing their bit up front, negotiating agreements left and right and setting those which are going to trial for jury on a later date (interesting, juries in the inferior court - unfortunately I wasn't in town long enough to watch one). For a while I can't figure out how they are doing it because there are no police around to tell anybody what went on. Then it hits me - everyone has police reports so no police need waste their time at court. Wow!!! How do we get that in Virginia?

Naw. That would take a hefty dose of common sense. Only a few jurisdictions have that hereabouts.

And that's about the extent of my observations of a Kentucky general district court. Well, actually there was one other thing. As I'm sitting there watching the goings on I look at the clerk sitting next to the judge. Now I can't swear to it but the lady looked exactly like the manager of a movie theater I worked at when I was young and dumb. That's not all that remarkable by itself but if she's the same lady she was a pothead who got fired for taking money from the safe (we were not on friendly terms). Interesting . . .

20 October 2004

Around the Web

1. SoCalLawBlog has an interesting discussion ongoing about the 3 strikes law in California.

2. Anyone who has had much contact with criminal law realizes that the people who get in the most trouble are those who don't know how to deal with officers and the system; frequent flyers generally know how the system works - normal folks just don't. The Policeman's Blog explains how "infrequent flyers" should behave to save themselves.

3. Mister District Attorney is in mid-series, explaining how things works at a prosecutor's office.

4. Waddling Thunder wonders what my opinion is of the possibility of going back to old Roman law requiring those who are searching someone's home to do so in their underpants. I think that's a swell idea. It would certainly cut down on the number of raids officers make and safeguard our fourth amendment rights. The main question I have is how law enforcement will replace the big windbreakers with the initials on the back. Would they get big fluorescent tattoos on their backs of FBI, DEA, or POLICE?

5. Blonde Justice wonders if there's a reason why ethics seminars always use Defense attorney examples instead of prosecutors.

6. Fed 84 on how to get your blawg up and running.

7. Tom Lincoln defending officers scammed by the feds.

8. You really should make sure the person you hire as a PD is a lawyer.

9. A lawyer scammed trying to get with a 13 year old girl. First comment: ugggg. Second comment: What kind of idiot lawyer doesn't know the cops are out there running scams in the chat rooms?

10. SWVaLaw points to an article about a judge so far over the top that JIRC actually is doing something about him.

11. Some people get paid to register votes. Okay that's not too bad - unless the payment is in crack.

19 October 2004

Off Point - Bourbon

My Personal Collection

Over at Southern Appeal Feddie got something pretty cool from Blanton's and it sparked a discussion of the relative values of various bourbons.

The primary question seems to be whether Blanton's is worth it or if it is bought simply to be a little snobbish because it comes in a particular bottle and costs more. Now, first off, I must admit that I don't pay as much for bourbon as the rest of you seem to because I travel to Lexington every so often and stop off at the Liquor Barn when I am there. According to the comments over at S.A., Blanton's costs $55 or more out in the rest of the country but where I buy it it is less than $40. Other better single barrel bourbons (like the Wild Turkey Kentucky Spirit above) cost about the same. There are then lesser known single barrels and small batch bourbons. Then there are the far more generic brands such as your basic Beam & Maker's Mark (the one above is a special bottle commemorating U.K.'s 1996 basketball championship). Over at the side is the locked display of the $100+ bourbons and at least a couple $1,000+ bottles.

Which, I guess, is a way of saying that I never really buy a bourbon because it is pricey. Yes, a well designed or unique bottle can draw me in and this explains the presence of the Maker's Mark above and the Kentucky Spirit. It also explains why I'm kicking myself for not getting a bottle of Four Roses and/or Rock Hill when last in Kentucky.

Still, in the end it comes down to taste. Over the years I've tasted a few bourbons. However, I am far short of being a connoisseur so I'll only discuss those with which I have more experience: Maker's Mark, Jim Beam, Blanton's, Wild Turkey & Woodford Reserve.

Of these, Beam is the least enjoyable (though I hear good things about Booker Noe's). I must admit that it has been forever since I drank Beam straight but it is good when mixed with coke. Not what I'd buy for home but passable at a bar.

Wild Turkey is something I drank while in college. Actually, I got to be a big fan of Wild Turkey Honey Liquor because I thought the honey added a really interesting flavor you cannot find in other bourbons. My last trip to Kentucky I bought the bottle of Kentucky Spirit above. I haven't tried it yet but I'm looking forward to it.

Maker's Mark is everywhere. It's the brand all the bars carry as their "high quality" bourbon. And it's very good. I've never had bad Maker's. On the other hand it just doesn't have anything all that distinguishing to its taste. There's just not anything that really challenges the palate.

Woodford Reserve has an interesting taste which is a little hard to describe. I swear, it tastes like it is precut and lightly woody. It's a quality bourbon and I can tell why people like it so much but it's just not the one for me.

Blanton's - Okay, I admit it, I cut Blanton's. Or, if I am being manly and tough, I have it "on the rocks" and sip slowly, very slowly until enough of the ice has melted. It's just too strong out of the bottle for me. With that admission out of the way, let me say that once I have cut it a little Blanton's has the best taste of any bourbon I know (although I wonder about the $3,000 bourbon I saw a couple weeks ago at the Liquor Barn). It has a fuller taste than Woodford and just enough of a rough taste to distinguish it from Maker's. There may be better bourbon but Blanton's sets the bar very high.

So there you have it - The Ken Lammers guide to quality bourbon. Sorry no post on crime today but I just didn't have anything all that exciting to report.

Stay tuned for tomorrow when we answer the burning question: Guinness, Fosters, or Sam Adams?

18 October 2004

DrugLaw - Planes

1. Brazil will now shoot your plane down on suspcion of transporting drugs. It's a trick they picked up from Columbia.

DrugLaw - Smuggling

1. Brazil to South Africa.

2. Into prison: "A student used Chinese herbs and after shave to disguise the smell of heroin he was trying to smuggle into a jail in his underpants."

3. From Mexico to the U.K.

4. Malaysia to Taiwan.

DrugLaw - Needle Distribution

1. Semi-legalizing heroin?

2. In JAIL?!?

DrugLaw - Dealers

1. Selling at a supermarket.

2. In New Hampshire they bag a dealer supplying the dealers.

3. Selling drugs from a cane while pretending to be a retired marine captain.

4. A drug dealing grandmother.

5. Delivering ketamine in Singapore.

6. 82 counts of possession with intent.

DrugLaw - Kids

Anybody who helps her 5 year old smoke crack deserves more than 18 months in prison.

DrugLaw - Police

1. An NYPD officer arrested trying to buy a kilo of cocaine.

2. A Pennsylvania vice officer caught stealing crack from evidence for his own use.

3. A man's death after being put down by officers attributed to cocaine not the confrontation.

4. Suing officers because the kid swallowed cocaine.

DrugLaw - Miscellaneous

1. In Scotland mushrooms with psilocybin can be sold as long as they are not prepared.

2. LSD as a cause for rape?

3. Yeah, I'd have probably left the 69 kilos of cocaine behind as well.

4. Murder by heroin?

5. 1,320 pounds of heroin intercepted on its way to the U.S.

DrugLaw - War

1. Intercepting heroin from a cleric in Iraq.

2. Opium crop up 35% in Afghanistan.

17 October 2004

DeathLaw - Juveniles

1. Quotes from the Supreme Court argument.

2. Will world opinion play a role?

3. Is the death penalty for juveniles being rejected around the country?

4. Are juvenile brains evolved enough to be held responsible?

5. Opinions in favor of juvenile death sentences can be found here, here, and a prosecutor's support can be found here.

DeathLaw - Anti

1. New York

2. California

3. Philippines

DeathLaw - For Hire

1. Lawyer

2. Doctor

DeathLaw - Snowballs

You cannot shoot the kid who hit your daughter with a snowball.

DeathLaw - Miscellaneous

1. It looks as though Britain may change its death penalty law to reflect that of the United States.

2. Mexico extradites a man because 40 years isn't the same as a death sentence.

3. Prosecutors decline to prosecute on guns charges because the accused is going off to face a murder charge. When he is found not guilty, all of the sudden they want to prosecute him again. Illegal? No. Unconstitutional? Probably not. Unjust? Probably. It sounds a lot like saying if we cannot get you for what we want to get you then we will get you for something for which we're not really interested in getting you. Just as long as you go to prison.

DeathLaw - Serial Killers

1. Jurors sentence death in order to bring peace to the victims' families.

2. You may be able to buy your way out of the death penalty for murder in Iran but that doesn't mean the judge won't sentence you to death for rape.

DeathLaw - Innocent?

1. DNA points to the innocence of a man in Utah.

2. Prosecutors deny the need to test the DNA in a case where the man confessed (New York).

15 October 2004

Quote of the Week

A vicious dog case. An animal control officer was on the stand testifying about a specific breed of dog. The prosecutor is trying to have the judge declare the officer an expert. The Defense attorney is cross examining the officer as to how he has come to his opinion about this breed of dog:
How many dogs have you not encountered to that you are basing this opinion on?"

14 October 2004

Around the Web

1. Do your job as a Public Defender, but not too well.

2. A description of magistrates court across the pond - where clerks tell judges what the law is.

3. Say what I might about my local judges none has ever acted like this. Lv3Sheets

4. The legal fiction of fair sentencing post trial.

5. And the award for funnest post I found tonight goes to Cop Talk. This post has some truly great things which officers have said to suspects, including:
"The answer to this last question will determine whether you are drunk or not. Was Mickey Mouse a cat or a dog?"

13 October 2004

A Week in the Life of a Criminal Defense Attorney

Haven't done one of these in a while. Enjoy.

Monday & Tuesday

Monday - Okay, on Monday I was driving back from vacation. Still, that didn't stop me from getting a call from a prosecutor (who knew I was on vacation) about a case we have on Wednesday. Fortunately, he must have called while I was in the mountains somewhere so I don't get the call until later in the afternoon when it is too late to call back. Having already bought a hat from my high school and college over the weekend I feel obligated to stop and buy a hat from W&L Law. Then I continue my journey back to the Richmond area and get home about 9 p.m. Since I enjoy the mountains a great deal the drive is enjoyable because of the beautiful scenery (which is only marred by the apparent need to put a billboard advertising a strip club every couple of miles in West Virginia).

Tuesday - In the morning I go to the Circuit Court to appeal a couple bonds set by the general district court. One man has had no bond set and all his charges but one dismissed in general district court. Unfortunately, his remaining charge carries a mandatory year in prison. The judge sets a reasonable bond. Then we turn to the second guy. He's a kid charged with DUI, driving on a suspended license, and failing to come to court. He's a college kid and he's set to deploy to Iraq in a couple months. The judge in general district court set a $5,000 secure bond which was just way too high. To be fair Client is from another State and has a terrible driving record but $5,000 was just an amazing bond to set for misdemeanors. When I pitch the case to the Circuit Court judge looks a little dubious but she lowers the bond to $1,000.

Then I go down to the general district court for a preliminary hearing. The charge is felony non-return of a rental car. My client was arrested (on a different charge) the morning he was supposed to have returned the car. Because the prosecutor doesn't seem to want to take my word for this I have to go get a copy of the capias under which he was arrested; it shows him being served at 9:05 a.m. The car was later wrecked by an unknown driver while my client was still in jail. We stipulate the facts and, although it's unusual to do so because of the very low standard, I make an argument for dismissal at this stage. The prosecutor then pulls out a case which says that if the person intends to do an illegal act but intervening circumstances prevent that illegal act he is still guilty. I point out that this is not on point for the case at hand because there's no evidence that my client intended an illegal act and the intervening circumstance is what caused the "illegal" non-return of the vehicle. The judge certifies the case to the circuit court anyway.

In the afternoon I go to court for a client with petit larceny and assault and battery charges. The client hasn't bothered to contact me so I'm not really sure what is going on. I meet with Client and then with the officer and the prosecutor. The prosecutor claims that on one date my client stole his ex-girlfriend's current boyfriend's keys while he was at the house to pick up his child. The A&B comes out of my client confronting the new boyfriend on a different date and flicking a cigarette in his face (followed by a fight which Client lost). At first the prosecutor offers to drop the petit larceny if my client pleads guilty to the A&B. Client is happy with this. Then the prosecutor comes back to me and starts backtracking on the offer. So then I go do some checking and it turns out that my client has been tried in Juvenile and Domestic Court for the theft of the same keys and found not guilty (some keys on it had also been ex-girlfriend's). So the prosecutor has to drop that charge because of the single larceny doctrine. Client pleads guilty on the A&B and gets some suspended time. After it's all over I look down at Client's arm and see some Arabic letters. I ask him what they are for and he tells me that they are his daughter's name, "Lori." I look at the letters. They aren't connected (all Arabic is in script) and they are the letters in alphabetical order: the equivalent of C D F G H J. I didn't have it in me to tell the guy he'd gotten rooked.


Wednesday: In the morning my client is charged with malicious wounding. The prosecution offers to drop it from malicious to unlawful wounding which will change it from a 5-20 years to 0-5. I don't think that the facts are appropriate for a malicious wounding but they are bad enough they could support all sorts of other charges (including, possibly, attempted murder) so Client decides to take the plea agreement.

In the afternoon I have two cases. The first is an Indian guy who is charged with sexual battery. My client's English is terrible so a buddy of his has come to court to translate for him. The complaining witness testifies that she came into a store cashed in a couple lottery tickets, my client told her she was beautiful, came out from behind the counter, and squeezed her breast. Next comes my client's tortured testimony. Part of the problem was that my client has some English and tries to answer some questions before they are translated even though he doesn't fully understand them. Eventually Client testifies that he looked at the woman like a motherly figure and hugged her in congratulations but didn't squeeze her breast. I point out to the judge that neither witness had been impeached, no third party witness, and no way that it rises to above a reasonable doubt. The judge starts to talk and won't look at me. He locks in on the prosecutor and won't even look over at me. He explains how if this woman were going to lie he expects that she would have come up with a better story than that and that lends more credibility to her story. He then sentences my client to 60 days but suspends it all. Standing there a little peeved, I scribble across the folder LBG conviction1 and ask for bond to carry over for the appeal. The judge grants it and I leave quickly with my clients before I say or do something stupid. My client, not coming into the process with a whole lot of confidence, decides to stand pat rather than appeal.

Then I go down the hall for the next client. It's a kid who got pulled over for the DUI and managed to multiply it into underage possession, refusal of a breath test, and obstruction. The officer tells me that the kid spat at him but I don't believe it. This officer is a walking example of why Defense attorneys should be given copies of the police report. I know from previous experience that he will hmmm . . . ah . . . (how to put this delicately?) . . . "exaggerate" when he talks to the defense attorney but tell the truth when in front of the judge2. The prosecutor will drop the refusal but nothing else. She agrees to 30 days on the obstruction and 4 days on the DUI (a total of 17 actual days in jail); all of this can be done on work release and I will ask the judge to give my client a few days before he has to report to jail to set up work release. Client agrees to take the deal. So we go up, plead guilty, and things start going wrong. First the judge asks the officer the purely pro forma question, "Was there anything unusual about this case?" Of course, we all know there is something unusual about this case; officers don't file obstruction charges unless the Defendant did something to tick them off. Still, most officers have the grace - once a deal is reached - to give a perfunctory statement and move on. This officer - Nope: "Yes, your honor, this was very aggravated . . ." And he's off to the races talking about all sorts of stuff which is not actually pertinent to any of the charges - all of which shows my client was acting like a jerk that night. Finally, after this show of bad form, the judge finds my client guilty. Before sentencing the judge asks my client the purely pro forma question, "Would you like to say anything before I sentence you?" Then my client is off to the races: "Judge, can I please have weekend time? I mean the officer caught me on a bad day. And it didn't happen like he said. He was rude . . " At this point I break in and whisper something to Client who shuts up. I then tell the judge that my client is standing before him accepting full responsibility for his actions, ask him to accept the deal, and ask for my client to have until the beginning of the next week to report to the jail so he can arrange for work release and keep his job. The first words out of the judge's mouth are, "Despite Mr. Lammers' assertions, I don't think you are accepting responsibility for your actions . . ." And the lecture continues from there. Client tries to interrupt the judge - I stop him. Client again tries to interrupt the judge and the judge fusses at him about it. In the end (and in a minor miracle) the judge upholds the deal with a minor tweak (a little more suspended time) but he won't let my client delay reporting to the jail (which, in effect, means no work release). I walk Client back to the holding cell and, in front of the deputy, he starts yelling at me about how he could have done a better job if he'd represented himself.

1 Which, after a couple days reflection is unfair. If I'd have been the judge and the story had unfolded like it did in the courtroom I might have reached the same result. Unfortunately, I think most of the damage is done well before court. If my client had had enough of a grasp of English to understand exactly what he was charged with and say, "I DID WHAT?!?" when the officer came to talk to him; if there wasn't the stereotype that all of "them" come from those evil take advantage of women societies; if everybody wasn't watching "them" because "they" are all potential terrorists; if . . . if . . . if . . .

2 To be fair, I was talking to another Defense attorney today and asked him about this and he disagreed with me. As well, he's not one of the "most watched" that everybody talks about. Maybe it's just me.

Thursday & Friday

Thursday: This day is fairly easy. In the morning I go to court and get a client readmitted into VASAP. Then I have to go to the circuit court and ask for a continuance so that I can subpoena someone. The judge isn't happy because I should have subpoenaed the witness earlier (and she's right; there's a story behind this but that silly privilege thing gets in the way of telling it). Still, she grants the continuance.

Friday: This day goes by fairly easily. My first client is accused of having stolen 3 credit cards (each a felony) and a wallet (misdemeanor) from his mother. The detective is there with two of the cards which were found on my client when he was arrested in Florida. The prosecutor agrees to drop the misdemeanor and one felony if Client agrees to plead guilty in circuit court.1 Client agrees and when he's brought out from lockup agrees to waive his preliminary hearing on those two charges after which the prosecution moves nolle prosequi on the other two.

The next case goes even smoother. It's a couple show causes for failure to pay court costs and failure to come to court. Client has paid off the costs so that gets dismissed out of hand. However, there is a little bit of back and forth about whether to dismiss the second charge. We all pretty much agree to drop the charge but the prosecutor wants my client to agree to pay the costs of court because of "the exorbitant fees paid for the most excellent services of Mr. Lammers." ($112) Client's going to have to pay the charges if she's convicted so we agree to that and that charge is dismissed as well.

But wait, there's more . . . I get appointed to represent a kid on a misdemeanor vandalism charge. Okay, no big deal. Then I walk the kid out to one of the conference room and look at his paperwork and find out he is accused of vandalism at a local convent. Great, the Defense attorney nightmare come to life: nuns testifying against my client. That'll be a fun day.

1Yeah, I know these agreements aren't legally binding but the consequence of backing out would be to have the other charges come back so almost all clients stick to them.

12 October 2004

Around the Web

1. The judge should give this guy's clients a break just for having to hear Manilow.

2. The difference between a practiced inmate and newbies.

3. Can the federal government destroy you for representing the wrong people?

4. Where FBI files go to quietly die.


Sorry no posting over the last couple days, I've been fighting off a really nasty bug for the last three days. Still feeling a little wobbly but I'll try to get something up a little later.

09 October 2004

DeathLaw - Multiple Trials

1. No retrial when prosecutors did not disclose that an expert witness had made numerous errors in prior cases.

2. If your lawyers lose your first two murder trials why not try the third yourself?

3. After the boyfriend kills the husband three trials later the wife is found not guilty.

DeathLaw - Inmates

You really shouldn't try to get someone killed while you are a prisoner. It's bad enough to try to get the prosecutor and police officer who got you put in prison killed but it is particularly heinous to try and kill your wife so that you can use the insurance money to make bail.

DeathLaw - Police

1. 18 years at hard labor in Jamaica for killing an officer.

2. 25 to life for killing someone while a police officer.

DeathLaw - Japan

Things must be truly different in Japan. Attorneys are urging the government to disclose information about executions. Meanwhile there's a situation where different people are both confessing to the police that "I, and I alone" committed the gangland murders.

DeathLaw - Youths

1. Does Grand Theft Auto drive children to plan to kill?

2. A 14 year old girl found guilty of murder in South Africa but not remanded to custody.

DeathLaw - Murder/Suicide

1. "The death of an Argonia, Kan., teenager hit by a train was a suicide staged to give the appearance of a homicide."

2. "A 72-year-old man killed his wife and then himself because he thought a refund from the Inland Revenue was a bill."

DeathLaw - Miscellaneous

1. A stripper who "spray-painted her ankle-monitoring device to match her outfit" during her first murder trial gets a retrial.

2. The question in this case is whether you are safer in prison than out on the street after killing a group of 1%ers.

3. "Man arrested with girlfriend's body in suitcase faces murder trial" No, really?

4. Killing over rims?!?

5. Sneak marijuana into Bali - face the death penalty.

6. Some juries in California are returning fewer death sentences (but it seems not to be a treand).

08 October 2004

Around the Web

1. A heartfelt post from I'm a PD.

2. The correct answer to this might go something along the lines of "Yeah, I spent 6 months in a prison in Saudi Arabia. Don't complain to me about cushy U.S. prisons."

3. Hmmm . . . Do all the cases wherein my clients didn't pay me count as pro bono?

4. You just cannot wedgie your ex-girlfriend.

5. Tinkers to Travelers to Romany. The comments are an interesting read as well.

6. Interviewing a prosecutor.

07 October 2004

A Motivated Judge

I've got to figure out how to get judges this motivated in cases I'm trying.
-------------------- -------------------- --------------------

THE COURT: All right.

Well, this is a continuation of a suppression hearing that was held earlier in the case. I heard the evidence and oral argument by counsel. And since then I have reached a decision in the case. But in order to reach a decision I want the record to show that I went with my court security officer to the area where this occurred, because the record needed to be fleshened out, and an eye-balling of the territory where the event occurred was necessary for me to make an intelligent decision.

But let me first recite the procedural background of the case. The defendant, John Smith, was stopped on February 26 of 1998 while driving a 1987 Hyundai by a Chesterfield County Police Officer. He was charged with two misdemeanors, possession of marijuana a violation of Virginia code section 18.2-250.1; and carrying a concealed weapon, in violation of Virginia code 18.2-308. He was convicted of both misdemeanors in Chesterfield General District Court on April 30 of ‘98 and sentenced to 30 days in jail on the marijuana charge, and 12 months in jail with one month suspended on the Weapon charge.

He then appealed these convictions and was released on his appeal bond. Although it does not appear in the record before The Court, I understand that Mr. Smith actually served approximately one and a half months of the sentence. A third charge resulting from the same stop, possession of cocaine, was apparently certified by the Chesterfield County grand jury, and records before this court indicate that the defendant was indicted by the Chesterfield Counry grand jury on July 20 of 1998 for violation of Virginia code section 18.2-248, possession of cocaine, a Schedule II controlled substance, with the intent to distribute, and Virginia code section 18.2-308.4 (b), Possession of a firearm while simultaneously being in possession of a Schedule II controlled substance, cocaine, with intent to distribute.

According to information from Pretrial Services, the Chesterfield charges were nolle prossed in the Chesterfield Circuit Court on December 16 of 1998. At some time during 1998 the case was selected for prosecution by the United States under the program known as Project Exile. And the defendant was actually indicted by the federal grand jury on April 9, 1998 with the following charges.

Count one, possession of with intent to distribute crack cocaine in violation of title 21 U.S.C. section 841, and 18 U.S.C. section 2. Count two, possession of crack cocaine in violation of title 21 U.S.C. 844 and 18 U.S.C. section 2. Count three, possession of marijuana in violation of title 21 U.S.C. section 844, and 18 U.S.C. section 2. Count four, carrying a firearm during and in relation to a drug trafficking offense in violation of title 18 U.S.C. section 924 C and 2. And counts five and six, possession of firearms and ammunition by an unlawful user of a controlled substance in violation of title 18 U.S.C. section 922 (g) (3) and 2. Count seven was a forfeiture of drug—related property and firearms.

Now, despite the federal indictment in April of 1998 the defendant was not arrested and brought into federal court for the initial appearance until December 16 of 1998. On December 23 of 1998 the defendant was released on pretrial release with electronic monitoring and other conditions.

It is unclear why Chesterfield County prosecuted him on April 30 with a federal indictment in their pocket. At any rate, if he did not appeal those convictions thus vacating them, there would clearly be a violation of United States Attorney’s manual section 9-2.142, also known as the Petite Policy. It is also unclear from the record before lower court convictions. I am concerned that this prosecution may still violate the Petite Policy, also known as the Dual Prosecution Policy, the policy first acknowledged by the Supreme Court in Petite versus United States, 361 U.S. 529, in 1960, which precludes federal prosecution following state prosecution for the same act unless there are compelling federal interests for the federal prosecution and the Attorney General approves the prosecution. Rinaldi versus United States describes that policy.

The policy is described in the United States Attorney’s manual section 9-2.142 as, “No federal case should be tried when there has been a state prosecution for substantially the same act or acts without a recommendation having been made to the Assistant Attorney General demonstrating a compelling federal interest for such prosecution.” Section 9-2.142-81 specifically states, “The policy applies, authorization must be obtained from the appropriate Assistant Attorney General whenever there has been a prior state proceedings or a prior federal prosecution, including plea bargain, resulting in one, an acquittal; two, a conviction; or three, a dismissal or other termination of the case on the merits.”

In this case the defendant was not only convicted of the marijuana and weapon charge, he also served approximately one and a half months of the sentence. Accordingly, it seems to The Court that despite his appeal, which technically may have vacated his conviction, the federal prosecution violates the policy unless the Department of Justice can demonstrate the compelling federal interest for prosecution in this case.

In view of the disposition that I am going to make of the case, I will have ample time to write Mrs. Reno and Mrs. Fayhe so they can call to my attention the compelling federal interest that has justified the prosecution in this case.

Now, as to the motion to suppress. I heard evidence on February 17, and I also have reviewed the memorandum and exhibits submitted in support for the motion to suppress, including the transcript of the detention hearing held before the Honorable United States Magistrate Judge David C. Lowe, as well as the memorandum and exhibits submitted in opposition to the motion. And as I stated earlier, I have viewed the scene, from the defendant’s apartment at 6471 Cosmic Road in the Meadowdale Lakes Apartments down Dundas Road to Jefferson Davis Highway. So after getting this further information, the matter is now ripe for disposition. And pursuant to Federal Rules of Criminal Procedure 12, I make the following findings.

On the evening of February 26 of 1998 the defendant, John Smith, a 19-year-old African-American male, left his apartment at 6471 Cosmic Road in the Meadowdale Lakes Apartments driving a 1987 Hyundi, and after exiting his apartment complex on Beulah Road he proceeded to where Beulah Road turns into Dundas road. And where he hit Dundas Road, it was at a point in time when a law enforcement person was either on routine patrol or had the area staked out, because immediately upon his getting on Dundas Road -- and he claimed he was on his way to pick up his girlfriend -- and as he hit Dundas Road, a Chesterfield County Police Officer turned onto Dundas Road behind the defendant, and according to the officer’s testimony and The Court’s own tracking of the situation, the officer followed the defendant for 1.1 tenth miles before he ultimately was stopped. And during that period of time he observed no violations of any rules of the road, but while following the defendant the officer stated that he noticed that he had a defective light on the rear of his vehicle that was not illuminating his license plate number, and he was unable to read in the nighttime the number. The transcript from February 17, page 49, shows that.

But after the defendant arrived at the intersection of Dundas Road and U.S.. Route Number 1 and 301, the defendant turned onto Route 1. The officer initiated a traffic stop and pulled his vehicle in behind the defendant’s vehicle. The officer Stated that the reason he did not pull the defendant over on Dundas Road was that the road was very narrow. In fact, it is a typical two-lane road in a suburban area. He continued. “I didn’t want to initiate the traffic stop on that road,” the transcript page 50. However, The Court’s view of the scene along Dundas Road from the defendant’s apartment to Jefferson Davis Highway, a distance of at least one mile, not the quarter of mile that the officer testified to, showed clearly that there were at 1east five intersecting streets in to which the officer could have safely pulled the defendant to initiate a traffic stop prior to reaching Jefferson Davis Highway. I also obtained a map of the area that shows these intersecting streets, a copy of which will be filed as an exhibit in the case. Also along this one-mile stretch of Dundas Road there is a fire house with an apron of almost a quarter of an acre where you could have pulled over, a school yard, and just as you approach Route Number One there is a hundred-yard apron on the righthand side of the road which would be a perfectly ideal place to pull somebody over for a traffic stop if that was what you had in mind. And why you would want someone with defective equipment to go on to a heavily traveled road like Route One when you have him on a less traveled road is a mystery to me.

So, after the officer initiated the traffic stop for the defective equipment, he asked the defendant for his driver’s license and registration. And after being handed those, he told the defendant to exit the car to view the defect.

Now, after the officer received the registration and license, he went back to his own vehicle and called in to the Division of Motor Vehicles to find out if the license number, or if the registration and license were valid. Apparently he was told by this source that they were.

So after making those checks, he comes back and gets the defendant and says, I want you to show -- I want to show you your defective equipment. So he brinns him to the rear of the car and points out the defect. And without issuing a ticket as to the defective equipment, he told the defendant he was free to go.

Now at this point in time, this is a free-standing event, just a pure classical traffic stop where the officer functioned in a very civilized way by giving a warning instead of a ticket. But this authorized freedom was illusory, because instead of returning to his police vehicle, which was parked behind the defendant, and going on his way, and allowing the defendant to return to his vehicle and leave, the officer proceeded to follow the defendant back to his vehicle, and in the process asked for permission to search the vehicle for drugs and weapons. Unbeknownst to Smith, when the officer was checking his registration and driver’s license, he also had called for a back up police Officer and for a K-9 dog. And apparently he either had a tip, or a suspicion that Smith was a drug dealer, because as Smith, thinking that he was free to go, goes to his vehicle, goes to get into his vehicle, he puts his hands in front of him to open the door, and at that point in time he is seized from behind by the officer, and for all practical purposes is arrested. And during this period of time, without permission or anything else, the officer searched him and came up with a bag of marijuana. And so this is a c1assical Fourth Amendment violation. And I find that the officer had either on a tip or for some other reason had reason to suspect that Smith was a drug dealer. It certainly shows a hunch or his gut feeling was good. But when the officer testified on direct examination about the stop before the United States Magistrate Judge on December 21 of ‘98, he never mentioned any type of a hand-rolled cigarette on the console. And in looking at the picture of the inside of the vehicle, I find that it doesn’t have a console, but it has the housing on the gear train, but you would need a magnetic cigarette to stick to it. The statement that there was a hand-rolled marijuana cigarette or hand-rolled tobacco cigarette or a white pencil was totally pretextural, and none of that existed, because the officer viewed the inside of the vehicle when he put his flashlight in there before he ever had the defendant exit the vehicle, or before or at a point in time when he was getting his driver’s license and registration. But during the hearing on September, I mean on February 17, this exchange took place. This was before the Magistrate Judge.

“Now, had you intended to let Mr. Smith go with a warning on the equipment violation?

“Yes, sir, I did release all the paper work back to him.

“What did you observe after you did that?

“At that point I essentially asked for a consent to search the vehicle for weapons and drugs. At which time Mr. Smith apparently got nervous and turned away from both myself and the vehicle and attempted to put both hands down in front of his pants and start to walk away from his car. At that point I grabbed him and detained him.”

The truth is he grabbed him as he was going to get into his vehicle, thinking he was going to go.

When the officer testified before this court at the suppression hearing he testified that he observed what he thought might be a hand-rolled cigarette in plain view on the console. A statement similar to the testimony given at the suppression hearing as to the hand-rolled cigarette was written by the officer shortly after the incident. But when he was interviewed by someone with the DEA, he never mentioned that, nor did he mention anything about a hand-rolled cigarette or white object on the console when he testified before the Magistrate Judge on March 23, or when he testified before the Magistrate Judge at that hearing.

MR. JONES: Your Honor, I am sorry to interrupt, but if I may, we didn’t have an opportunity to discuss this last week. The testimony of the officer regarding the rolled up cigarette was elicited by counsel, and it is on page 11, starting at lines 13 through the end of the -- well, specifically line 16 through 19.

HE COURT: Which hearing?

MR. JONES: Detention hearing Your Honor referred to.


MR. JONES: I wanted to correct your statement that the officer never testified as to the hand-rolled cigarette. That is in fact in the transcript.

THE COURT: All right.

I said he didn’t testify to it on direct.

MR. JONES: No, Your Honor, that was a non responsive answer to my question. I didn’t pursue that, but I just wanted the record to be clear that the officer did testify as to that.

THE COURT: In any event, I find that that was totally pretextural, because where you have such a marginal case of having a basis for doing what was done in this case, any officer would have absolutely confiscated that item and preserved it for evidence, because otherwise you could make these things up as you go along. But an officer knows that he has to have an articulable reason for doing what he is doing when he doesn’t have probable cause, and that this officer obviously is well-trained and is highly-motivated to get convictions, and that was the impression that I had from his testimony before me.

So I do not accept his testimony that he saw anything on the console that gave him reason to suspect that the defendant was a drug dealer. So, it is clear that the officer had the right to stop the defendant’s vehicle for defective equipment, no question about that, but that was a free-standing case unto itself. And after he stops him and tells him he is now free to go, he has to have some other reason for doing what he did, and I am finding from the record that his reason for doing it was because he had a hunch or a suspicion or had a tip that Smith was a drug dealer, and that he was determined to get him.

But in any event, the Fourth Circuit defined the scope of what the officer can do in such a situation as follows: The officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation. Where the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by the police for additional questioning. Any further detention for questioning is beyond the scope of the Terry stop and therefore illegal unless the officer had a reasonable suspicion of a serious crime.

Now, his only reasonable suspicion here at this point in time has to be a hunch or tip that Smith is a drug dealer, because when he looked in the car after he first stopped him, there was no evidence of any sort that would -- that he could articulate as a reason for going further. The Fourth Circuit also held that a routine traffic stop does constitute a fourth amendment seizure, so that when the purpose justifying the stop is exceeded, the detention becomes illegal unless a reasonable suspicion or some other crime exists. Instead of allowing Smith to proceed on his way, the officer asks for consent to search the vehicle for drugs and weapons. When permission was not granted and the defendant attempted to get into his car, the officer then grabbed his hands and held him until his back-up and the K-9 arrived, or they stood there waiting for him, because from the time that the officer seized him he never went back to his car to call for a back up officer or for the K-9 corps. That had been done before when he was back in there checking his driver’s license.

The Court specifically finds that when the defendant refused to give permission to let the officer search his vehicle and instead attempted to go to his car and leave, the officer grabbed the defendant’s hands and held onto him, so the defendant receives the violation of his fourth amendment rights. I further find that the officer had already called for back up and the K-9 before he grabbed the defendant. And this is based on the fact that there was no opportunity for the officer to call, according to the testimony, after the point in time where he had grabbed the defendant, because he and the defendant were standing by the car awaiting for the arrival of these back up forces. Once the initial purpose for the stop was fulfilled and the issue of the defective equipment was resolved with a warning and the defendant declined the officer’s permission to search the vehicle, the officer had no basis for detaining the defendant as he did.

And I specifically find that the defendant wasn’t nervous, he was just so pleased to be given a warning and get on his way that he was heading for his car and trying to get in it when he was seized. There was no reasonable, articulable suspicion that the defendant was or had been engaged in or was about to engage in criminal activity. The case law requires that the officer’s suspicion of criminal activity be based upon more than an unparticularized suspicion or a hunch. Absent the critical predicate of a reasonably articulable suspicion, an officer’s hunch, even if ultimately correct, or behavior that is generally suspicious, does not authorize even the limited intrusion of personal liberty sanctioned by Betemit.

And even. if you believe the officer on the factual issue of whether the defendant told the officer that he had some marijuana in his pants, such a statement by the defendant would not remove the taint that accompanies the fact that the alleged statement by the defendant was obtained through the exploitation of an illegal detention.

So because the officer had no reasonably articulable suspicion of criminal activity, the detention of Smith was unlawful, and neither his statements nor the fruits of the search may be admitted into evidence at trial; and therefore, the defendant’s motion to suppress is granted.

Now, since the evidence will not be admissible, do you have enough evidence to proceed to trial without what I have suppressed?

MR. JONES: I need a clarification, Your Honor.

THE COURT: I have suppressed all of evidence that was seized, including the statement.

Now, do you want to proceed to trial without that evidence and the statement?

MR. JONES: Are you suppressing the statement made -


MR. JONES: -- after the second Mjrandizing?

THE COURT: Yes, all the statements Everything. There was a seizure as he went to get into his car, as I have factually found.

MR. JONES: If you are Suppressing all the statements and all evidence, there is no evidence.

THE COURT: All right, fine. Then the case is dismissed.

I hope you appeal it, because that will give me time to write Mrs. Reno and Mrs. Fahev and find out what the compelling federal interest was in handling this case the way it has been handled.

Recess court for five minutes, because we have another case to try at that point in time.

Janet, I have a whole batch of exhibits that need to go in, including a diagram of the territory and things to fleshen out the record.

Debbie will get with you and they can be marked as court exhibits.

(A recess was taken)

Steve Armstrong The Blog

The guy who writes this blog just left his position at our local courts as a pretrial officer due to a combination of increased bills from bringing a kid into the world and an offer of a job which pays better.

06 October 2004

Muhammad Screw Up

Well, you learn something every day. I knew of the 5 month limit during which someone must be brought to trial but I didn't know it runs from when someone has had a detainer served against him. oops.

Blakely on the States

I got this a while back and realized I had never posted it.

A short commentary on Blakely, Virginia, and mandatory minimums.

Also, an updated version of Anne Skoves' memo on Blakely's effect on State courts.

Article 15's -

Once upon a time I was a soldier. Mind you, I wasn't the best soldier in the world but I never faced an Article 15. For those of you who don't know what that is, in the Army when you do something stupid, against regs, or even illegal your commander has the option of punishing you without sending you to a court martial. He can give you extra work, take some of your pay, restrict you to a certain area, etc. Technically, it's not a conviction but it's devastating to a career if it is put on your record (or at least it was when I was serving).

Major Robert Don Gifford lays out what the rules are for an Article 15 in this article.

It's an interesting read because it covers a lot of things that I never knew when I was in the Army. For instance, when someone agreed to take an Article 15 rather than a court martial we all assumed that "taking an Article 15" meant submitting to punishment - instead it means accepting a hearing in front of your commanding officer. Still, I'm not sure that there is much practical difference between the two in the real world since I never heard of an Article 15 not ending with the soldier being punished.

Another thing I never knew is that officers can get Article 15's. I saw all sorts of privates get them and every so often a sergeant would but I never heard of any officer subjected to one. I suspect that as unhealthy as they were seen to be to a sergeant's career they must be absolute poison to an officer.

An interesting read.

Witch Hunt

I just finished reading No Crueler Tyrannies. It's about the massive child sexual-abuse prosecutions in the 80's and 90's. Most of us in the criminal law community know of these cases and the unjust convictions which came from them. I suspect that many in the "real" world know of them as well since they've received a good deal of press as case after case was overturned on appeal or habeus by incredulous appellate court judges.

Still, it was shocking to have these cases brought to life. In case after case it points out how children were brainwashed in multiple sessions with adults insisting the child had been abused despite the child's denials. Often parents helped because they were told that the very fact their child was denying everything meant something had happened or the parents were given a laundry list of "symptoms" so broad that any worried parent could find some "indicator." When the children finally began making up stories there were many so fantastic that they could not be believed: rapes while kids were tied to trees, next to a road, in front of the whole kindergarten class, orgies led by the pastor at church after services, knives and forks stuck in private places (with nary a physical harm); robots being involved in the rapes; etc:
This witness too had testimony to give about a robot at the school - one who had bitten her arm and warned children not to talk. Under cross-examination she gave further details.

Q: What color was the robot?
A: Silver

Q: Silver. Did it have lights on it?
A: Yes

Q: And was it a big robot or a little robot?
A: Big.

The picture of the robot as it finally emerged was of a green, yellow, and silver creature with lights, which moved on wheels. The witness agreed, further, that the robot was someone like R2-D2 from Star Wars.
p. 37-38
"Experts" would then come to court and testify that what the children had said was true and make bizarre claims:
Prosecution expert Eileen Treacy explained. A child's emphatic denial that anything happened was in fact proof that the child had been victimized, she informed the jury.
. . . .
A parent noted her child no longer cared for tunafish. This had significance, Treacy told jurors: "It's well known that the smell of tuna fish is similar to the odor of vaginal secretions.
p 14-15.
Prosecutors brought incredible numbers of charges against individuals:
Within the first few months of investigation, more than forty people were arrested on similar charges - several charged with 2,400 and more counts of sexual abuse. One woman was charged with 3,200 charges of child rape.
p. 101
The majority of the cases the book covers have been overturned; in a couple the accused remains in prison despite an almost universal belief that the conviction is unjust.

Turning to the book itself: It is one sided. The prosecutors' points of view are not put in a favorable light. I suspect that given the opportunity to speak "on background" many of these people would speak of the fact that in those times it seemed like these things were really happening and they were fed a bill of goods by a bunch of quacks and hornswogglers who claimed to be experts in the field.

As well, all the people accused are described in rather glowing terms. I'm sure the cases the author chose were those wherein the people involved were not such that their characters muddled the issue. I'm also sure that the people described in the book are most likely innocent (not merely "not guilty"). Still, sometimes the descriptions of the accused make them seem just a little too goddy-goody.

The book's format is a collection of smaller stories with one larger story interwoven among them - alternating chapters. I'm not sure why this method is used but it's not very enjoyable. I'd rather have read it as a collection of stories.

Overall, it's an interesting read. Not the best written but the subject more than makes up for any inadequacies.