15 December 2004

The World's Worst Attorney

How could I not win this case?

On the 7th of October my client rented an automobile. The automobile was to be returned on the 9th of October at 12:30 p.m.

Client was arrested on the morning of the 9th. The capias was actually served on him at 9:05 a.m. which means he had already been in custody for some time prior to that. Obviously, the car didn't get returned and Client was charged under this statute:
18.2-117: If any person comes into the possession as bailee of any animal, aircraft, vehicle, boat or vessel, and fail to return the same to the bailor, in accordance with the bailment agreement, he shall be deemed guilty of larceny thereof and receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The failure to return to the bailor such animal, aircraft, vehicle, boat or vessel, within five days from the time the bailee has agreed in writing to return the same shall be prima facie evidence of larceny by such bailee of such animal, aircraft, vehicle, boat or vessel.
The prosecutor had the owner of the rental agency come up and testify to the fact that the car was rented and not returned. I introduce the capias paperwork showing the 9:05 a.m. arrest. Client has been in jail on the other charge since the capias was served.

I stand up and argue (1) that it was impossible for my client to return the car and (2) because my client was arrested prior to the time of return it is impossible to show an intent not to return the car.

The judge and I then engage in a discussion over whether or not the statute requires specific intent. The judge asserts that the fact the words "willfully or wantonly refuse to return" are not included in the statute the prosecutor doesn't have to show specific intent. I counter by saying there has been no showing of intent at all, not even the most generalized intent to do something bad. The judge is not with me so I move on to the other argument.

I point out it is impossible for my client to have returned the vehicle. The prosecutor gets up and quotes a case which states that while legal impossibility is a defense, factual impossibility is not. The judge agrees that this case is not a legal impossibility but a factual one. I point out to the judge that the case the prosecutor is citing is a conspiracy case which basically says if the police intervene to keep the conspiracy from reaching fruition it does not mean someone is not guilty of conspiracy and that the case is not appropriately applied.

The judge listens politely and then finds my client guilty.

How? I have no idea.


Mister DA said...

What kind of prosecutor whould even charge that? Let alone go forward once the facts were known? I apparently reside in a regional bubble of prosecutorial sanity where we try to remember the job is Justice, not winning.

I assume this is a felony (the value of a sub-compact rental car would surely push it into the upper felony range in my state) so your client may want to appeal. If so, take a look at Professor Josh Dressler's Understanding Criminal Law for a through discussion of the impossibility defense.

Hell, I'd argue something on the order of latches - the State locked him up so he couldn't comply with the contract, now the State can't charge him for failing to comply with the contract.

I hate that specific/general intent crap.

Anonymous said...

I agree with others that on the facts presented when the government renders you incapable of following the law, the government can't very well prosecute you for the violation of law. If there was one. Wow.

I wonder if your client had suffered a catastrophic injury if he'd be guilty. The same logic applies.

We couldn't charge that in California. If we could, we wouldn't. (At least not in my county.)


Ken Lammers said...

I actually made the catastrophic injury argument. No dice.

Anonymous said...

I've been thinking about your case since you made this post. I am stumped. I don't think the loss was due to poor lawyering, at least not from the lawyering done by the person without the robe.

Anonymous said...

1. Doesn't larceny in your jurisdiction require mens rea of intent to steal or the like?

2. Doesn't the fact that failure to return within five days is only prima facie evidence of larceny make clear that failure to return is not concludive evidence?

3. Doesn't your criminal code have a catch-all requirement of mens rea in it somewhere?

Good luck on the appeal,

Jack of CrimProfBlog