28 February 2005

Around the Web

1) 14 year olds facing a 1st degree murder charge.

2) If you give permission for someone else to come into your home police automatically are able to come into your home.

3) If the Bill of Rights was introduced into Congress today, it would not make it out of committee.

4) The feds handicap a mayor's race.

5) Why would you set up a fake firm and lure PD's out into the real world with it?

6) If you steal a police car don't come to court wearing the officer's shirt.

7) The new laws passed by the Virginia General Assembly (via Commonwealth Conservative). Perhaps most interesting is that the anti-minor/driver use of a cell phone bill died. It was withdrawn because a Senator wanted to allow hands free phones. Meanwhile, Commonwealth Commonsense is upset that cameras at red lights are going away.

8) ADS discusses in depth the Supreme Court decision which forbids prisons to segregate incoming inmates by their races.

26 February 2005

A Surprise From The Virginia Court of Appeals

I am pleased to announce that the Virginia Court of Appeals has applied the Exclusionary Rule to violations of state law. You read that correctly, the Court of Appeals held in Moore v. Commonwealth that when law enforcement breaks state statutes, the fruits of the unlawful arrest are inadmissible.

Moore was driving with his dog, when several law enforcement officers pulled him over. The officers were under the mistaken belief that Moore was an individual who had just been released from a federal penitentiary. The officers realized their mistake, but also discovered that Moore was driving with a suspended license. Under Virginia Code 46.2-301(C) driving with a suspended license is a Class 1 misdemeanor.

In Moore, the officers arrested Moore for driving with a suspended license. However, under Virginia Code 19.2-74 the officers were required to issue Moore a summons. Thus, the officers broke Virginia state law.

The Court of Appeals extended the Supreme Court holding of Knowles v. Iowa. In Knowles, the Supreme Court held that when an police officer conducts a search when only a citation has been issued the fruits of the search are unconstitutional. Thanks to Moore, when an officer unlawfully arrests an individual under Virginia state law, the fruits of the search incident to arrest are inadmissible in court.

For more analysis on the Exclusionary Rule at the Constitutional level see Repercussions When Law Enforcement Breaks the Law. Additionally, it is possible that the outcome of the case will change when the Virginia Supreme Court weighs in on the issue.

Two Corrections: In the previous article, I incorrectly stated that the Virginia Supreme Court was reviewing Moore v. Commonwealth. Although the Virginia Supreme Court has reviewed a case by the same name, it is a different case with a very different issue. I apologize for any confusion. Also I incorrectly predicted that the Virginia Court would hold that the evidence would be admissible if only state law is broken. I am happy to be proven wrong.

Infinite Variety: A New Nigeria Scam

This summary is not available. Please click here to view the post.


It looks as though they've caught the BTK serial killer.

25 February 2005

In the News

1) Segregation in prison is subject to strict scrutiny.

2) In Canada being acquitted is not enough to keep you from being brought back to trial. The disadvantage of not having that pesky double jeopardy clause.

3) India is thinking about reforming its criminal system.

4) Euro countries are going to start sharing criminal backgrounds.

5) Setting cameras up around town doesn't help stop crime.

6) Kicked the drug habit but sold to pay off his former dealers.

7) Crime goes down in Japan but criminal acts by foreigners go up.

8) An Iranian girl is sentenced to 100 lashes when a judge doesn't belief her rape claim.

22 February 2005

Double Jeopardy Means Double Jeopardy!

Smith v. Massachusetts

After the prosecution has finished presenting evidence - including statements along the lines of "He shot me with a pistol - either a .38 or.32" - the defense moves to have an unlawful possession charge found not guilty because one of the necessary elements of the charge has not been proven: that the firearm is less than 16 inches.

While I'd have thought it fairly common knowledge that a .38 or a .32 pistol is less than 16" apparently it wasn't and the judge approves of the defendant's motion. Perhaps he understood the law to require actual introduction of the length into evidence and did not believe an inference based on common knowledge to be sufficient. In any event it is entered into the record that the motion is granted.

At the close of all evidence (there were other charges) the prosecutor presents the judge with case law that convinces him that he was wrong in his earlier decision. Before the jury is given instructions or closing arguments the judge reinstates the charge (jury never knew it was gone) and defendant is found guilty.

Justice Scalia, writing for the majority, finds that this violates double jeopardy. The mid-trial acceptance of the defendant's motion is an acquital and therefore reinstating the charge after the defendant might have introduced prejudicial evidence he would never have introduced had the charge remained is a "snare" which defendants ought not to have to face.

If a State's statutes, rules of court, announced common law, or exercise of the State supreme court's "supervisory power" (huh? Wouldn't that be the rules?) allow reinstatement of a charge then double jeopardy does not occur because . . . Well, okay the decision doesn't really say why. I'd guess it would be because the defendant had fair warning of the rules of the game.

Nevertheless, when the Massachusetts appellate court laid down a similar rule it went too far because it didn't have this issue settled prior to this case. Interesting. Perhaps if the Massachusetts Supreme Court had taken the case it could have exercised its "supervisory powers" and declared this procedure valid and been approved by the Federal Supreme Court. However, all the same arguments regarding prejudice against the defendant would still apply so that seems unlikely.

Basically, it looks like the Supreme Court has shut down common law in this area. The question becomes whether this will lead to any changes in the statutes or rules of court or if it will become the accepted standard?


Law School Blogs

Orin argues that blogs have supplanted case notes. The only possible flaw I can find in his argument is that I'm not sure a whole lot of attorneys know what blogs are. I find myself helping other attorneys to use WestLaw at the law library and have gotten blank looks when I've said the word "blog." Still, I imagine that as more and more students come out of law school trained in computers this will fade.

Of course there is also the reality that every student wants to write a case note to have something to put on his resume. Because, as we all know, that 8 page note on a case nobody has heard of (or will, ever again) is going to set you apart from the thousands of other students writing notes on cases nobody really cares about.

One interesting possibility is that a law school could start its own blog with student staffing. For example, the W&L Race and Ethnic Ancestry Law Journal (where yours truly wrote his case note) could become The REAL Blog. This would allow quick updates on cases of note. It could also cover relevant items in the news. It would allow students a place where they could have their work "published." They could also have reactions from others who have an interest in the blog's subject matter, either through email, comments, or a post on another blog. Of course, there would be some sort of "editor" to assign different people different areas of responsibility (or at least to make sure no flame wars occur). One major advantage it would have over journals is that when listed on a resume the potential employer can actually go look at the blog and see the insightful analysis contained therein.

Anyway, there's the idea. I gift it to you all. After several years of committee studies and worries that it will lower perceived academic standards for the institution maybe some law school will actually adopt it.

21 February 2005

Assault Against Afghan Prisoner

David Passaro is the only civilian facing federal charges involving a detainee in military custody. Passaro was a CIA contractor who is charged with beating a prisoner in Afghanistan who later died. Passaro is facing four counts of assault. According to the Washington Post, his lawyers argue that Passaro was protecting the nation against terrorists.

20 February 2005

A New Twist for Consensual Searches

In United States v. Smith, decided just last month, the Fourth Circuit has taken the rule regarding consensual searches to a new level. It was late at night when Smith became lost driving near CIA headquarters. He stopped for directions at a callbox at the access road to the main gate for the headquarters. An officer directed him to a barrier closer to a gate. Smith was then surrounded by officers, one of whom was pointing a shotgun at his car (the officers could not agree as to whether it was pointing directly at Smith at the time). The 4th Circuit Court of Appeals held that it did not matter whether the officers had reasonable suspicion to make a seizure. In fact, the 4th Circuit held that the Fourth Amendment did not apply, since the encounter was consensual.

Under United States v. Mendenhall, the Supreme Court has stated that to determine if a seizure has occurred, the court should apply an objective standard on whether the reasonably prudent person would feel free to leave. Smith makes a good argument that he was not free to leave when he was surrounded by officers with guns drawn. The 4th Circuit states that it does not matter whether Smith felt free to leave since he drove up to the barrier voluntarily and since the officers had a reasonable belief that the encounter was consensual.

First, although Smith may have driven up to the barrier voluntarily initially, he did so to get directions not to be threatened with firearms. Additionally, the Supreme Court has held numerous times, that what may be initially a consensual encounter may turn into a seizure when the reasonably prudent person no longer feels free to leave. See Terry v. Ohio.

Second, the Supreme Court has held under Mendenhall, that the court looks at whether a reasonably prudent person in the same circumstances as Smith would have felt free to leave. The 4th Circuit disregards this test, and looks only to whether a reasonably prudent law enforcement officer thought that the individual was consenting to the seizure.

Finally, the 4th Circuit held that a reasonable prudent person would consent to having guns drawn on them and a search of their automobile since they knew that they were approaching CIA headquarters. This may be true under circumstances other then those in this case. The officer that directed Smith to the barrier did not mention anything about a search of his car, or to expect that he would have weapons pointed at him. Additionally, there were no signs signaling to members of the public that by driving on the access road, they were consenting to any types of searches, seizures, or should expect to be stopped.

19 February 2005

Synopsis on Recent Virginia Appellate Cases

Davis v. Commonwealth
In a recent case the Virginia Court of Appeals addressed the issue of what “court custody” includes. Davis was out on bond and ordered to report to the jail after a bench trial that where he pled guilty to five felony drug charges and three misdemeanor offenses. When Davis failed to report to the jail, the trial court found him guilty of escaping from court custody and sentenced him to two years of prison with one year suspended. The Court of Appeals reversed the trial court, finding that Davis was not in the court’s custody. The Court held that for a person to be in custody there must be some type of physical control or submission. By not reporting to the jail, Davis never submitted to the court’s authority. However, the trial court can still use it’s other remedies for failure to abide its orders.

Gilbert v. Commonwealth
In this case the Virginia Court of Appeals held that spitting on another person, even without inflicted an injury constitutes an assault and battery. The court held that when Gilbert spit on an officer’s head he committed an act that involved physical contact and was deeply offensive. Although it seems a stretch that Gilbert intended to harm the officer purely by spitting on him, Gilbert also threatened to kill the officer before and after he spit.

Johnson v. Commonwealth
In a case decided just three days ago, the Virginia Court of Appeals held that when the defendant fails to address all of the holdings in his appeal when there are more then one alternative holdings by the lower court, then the result is a waiver of any claim of error with respect to that issue. This holding becomes clearer when given context. The trial court held that: 1) the officer who frisked Johnson did not exceed the permissible limits of a weapons search 2) and even if the officer had exceeded the permissible limits the doctrine of inevitable discovery would have made the fruits of the search admissible. Johnson only appealed the first holding as to whether the officer exceeded the permissible limits of a weapon search. The Court of Appeals declared that even if they found error in the first holding, the second holding was not appealed. Thus, the evidence would still be admissible, and the trial court’s holding would still stand. Since the outcome of the holding does not matter if only one issue is addressed, the Court of Appeals found that a waiver of any claim of error regarding the issue in that holding when all of the alternative holdings are not appealed.

18 February 2005

Not Guilty

The Hooters girl murder trial ended with a not guilty finding after only a hour and fourty five minutes of jury deliberation.

17 February 2005

Hey, Hey, Hey!

No charges against Cosby.

If You Walk Around Psychedelic

If you look so weird that people are calling the police saying that they are worried you are going to jump off a bridge you might want to answer before the police threaten to shoot you.

More on the Hooter's Waitress Murder

The accused took the stand and, to the surprise of all, says he didn't do it.

I watched a good portion of the defendant's testimony and he was well spoken and had all the right answers. Nobody at the courthouse is putting any money on how the verdict turns out.

Yet Again Not Here

I gotta go write a brief, some interrogatories (yeah, I know civil work, uggg), and prep something else I promised to write. I shan't be posting until Tuesday.

Of course, that doesn't mean that all the other folks who have the right to publish here won't. We'll see.

Another Year - Another Failure to Pay

I wish I could say that I'm surprised that Virginia's General Assembly is once again refusing to fund indigent defense.

Why Retry?

The feds retry someone who had been found guilty of murder in Virginia in 1998, so that they could kill him. First, more than a little bloodthirsty. Second, they failed.

15 February 2005

More on the Hooters Waitress Murder

In the murder case I discussed yesterday, the defense started its case by calling a man who claims that he killed the woman, not the defendant.

Crime at Southern Appeal

William, at Southern Appeal, points to the involuntary intoxication defense which is being used in South Carolina.

BTW, this is the case which Court TV has been following for the last week.

Phone Scammers Plead Guilty

Remember that email you got promising you all the free porn you wanted if you'd just give a credit card number to verify that you are an adult?

Good thing you didn't: "Prosecutors said $230 million in fraudulent charges was levied on consumers who believed the sites needed their card numbers for age verification."

14 February 2005

Volokh - Law Review Articles

Over at the Conspiracy, Eugene Volokh has a post about marketing law review articles through blawgs.

I just wanted to say that if anyone has an article they'd like to point out (limited to CrimLaw matters) I will be happy to put up a paragraph or two about it. I cannot promise to find the time to read a bunch of 40-70 page articles and review them but I'll be happy to put something up as to what the author states to be the point of the article. I'd prefer to have something to link to but that's not an absolute necessity.

Ongoing Murder Trial

My local courthouse has a jury trial ongoing for a murder which has all the makings of a Court TV show - if only Virginia judges would allow them in a court room. A very pretty young woman who works at Hooters disappears in the middle of the night. Her on-again-off-again, at least verbally abusive boyfriend called in her disappearance and is the accused.

As I can discern it (through the local news and the courthouse gossip vine), the prosecution's strongest evidence is that the accused made some statements before they found the body in which he talked about the decedent in the past tense and talked about some evidence which they claim no one told him about. One dog traced an unidentified scent from the lady's abandoned car almost to their mutual house. Another couple bloodhounds were given the scent of the lady's makeup and trailed a scent from the abandoned car to a pond. The governments' theory of the case appears to be that the defendant killed the lady, hid her body at a sports park near where the dogs lost the scent at the pond, and the next morning slipped away from the police who were tailing him and hid the body in a dumpster at an apartment complex.

The difficulty is that the prosecutor's theory of how it happened just does not seem to fit. They don't seem to have any forensic evidence at the house or in the car reflecting a struggle or injury. They don't have a weapon which can be tied to the bullet wound. It's debatable whether the defendant had time to do the things the prosecution alleges the night of the murder. It gets real thin when the prosecution claims he slipped the police for "at least 18 minutes" the next day during which he went to get the body, made "a 27-mile, 74-stoplight roundtrip", and hid the body at the apartment complex.

Of course, the prosecution also has the problem that another man has confessed to the murder.

There's more to it but you'll have to read the articles to get it all.

Suspect in homicide was victim's boyfriend, is the father of 6-year-old son

Prosecutor: Suspect knew details in slaying
But defense counters that evidence of guilt is lacking in woman's shooting death

Police describe crime scene

Evidence draws tears from defendant

Murder trial testimony conflicts

Witness alleges death threat
She says defendant said he could kill the Hooters waitress

More on Law Enforcement Breaking the Law

Yesterday, Yasmeen pointed to a case before the Virginia Supreme Court which addresses whether an arrest makes the subsequent search unconstitutional if the arrest was a violation of Virginia law but not, in-and-of-itself, unconstitutional.

I addressed this issue somewhat while discussing Devenpeck here (read the comments too). I think Yasmeen is probably right in her assesment as to the probable outcome of the pending case.

13 February 2005

Reprecussions When Law Enforcement Breaks State Law

There is an interesting issue up before the Supreme Court of Virginia that is a case of first impression. The case is Moore v. Commonwealth; but you’ll have to wait a few weeks before the opinion comes out. The issue that the Supreme Court heard argument on is whether a violation of state law plays any part in determining a Fourth Amendment violation triggering the Exclusionary Rule.

The Exclusionary Rule precludes evidence seized in violation of an individual’s constitutional rights from being used to convict of a crime. The rule is most often applied when police conduct an illegal search or seizure. The rule was first applied to federal courts in 1914 by the decision in Weeks v. United States. In Wolf v. Colorado, the Supreme Court applied the rule to the states.

In Knowles v. Iowa, the Supreme Court held that there is no search incident to citation exception. In other words, when there are minor citations an officer cannot search someone without a warrant. However, the Supreme Court has also held in Atwater v. City of Lago Vista, that when a state has a statute that allows for arrest of misdemeanors without a warrant, there is no constitutional violation.

Atwater was a case in Texas. In Virginia, the rule is that an officer cannot arrest someone for a misdemeanor unless it was committed in the officer’s presence. In the current case of Moore before the Virginia Supreme Court, the officer arrested an individual for a misdemeanor that was not committed in his presence. Incident to the arrest, the officer searched and seized evidence that was used to convict of a crime. The actual arrest was a violation of state law, rather then constitutional law. Thus, whether the exclusionary rule would apply is at issue.

The Virginia Supreme Court could hold a number of ways on this case. It is most likely that the court will hold that a violation of state law, does not trigger the Exclusionary Rule, and the evidence seized in violation of the law can be used to convict of a crime.

The court could also analogize with Knowles, and decide that where a state does not provide a statute that allows for arrest of misdemeanors without a warrant, an officer cannot search and seize evidence for minor citations even if the officer arrests the individual, when the arrest violates state law.

The most unlikely outcome, but in some ways the most logical, the court could examine the reasons for the Exclusionary Rule and decide whether the state of Virginia should apply the rule to police conduct that violates state law. Although some would argue that the Exclusionary Rule potentially allows criminals to go free, the Rule has several benefits and advantages over other remedies. First, the Rule protects privacy by discouraging police from breaking the law, and encouraging them to obtain warrants. Second, the Rule provides a check on unfettered government power. Third, in practice Courts have found that the Rule is the only effective deterrent. See Wolf for Supreme Court's discussion on the Exlusionary Rule.

12 February 2005

Curious About Islamic Law?

Here is a very interesting article titled Islamic Law: Myths and Realities that does an amazing job of explaining generalities about both the Muslim religion and it’s affect on Arabic laws and judicial systems.

11 February 2005

An Evolution of Torture

Pointing to the trend of longer prison sentences, some scholars argue that America is on a track of ever increasing levels of harshness in its criminal policies. Many feel that rehabilitation programs have fallen by the wayside, while America pursues a policy of merciless vengeance. In Harsh Punishment, James Whitman concludes that American punishment is cruel compared to other modern industrialized countries.

On the up side, our punishments look like a slap on the wrist compared to those just a few hundred years ago. In Colonial Williamsburg the punishment for stealing food was a good old fashioned hanging. For the crime of failure to attend church in Virginia between 1611 and 1662, the “criminal” received a punishment of deprivation of food for one day. If the naughty parishioner was a repeat offender, the punishment for the second time was a whipping. And for those lost souls who missed church three times, a punishment of 6 months of rowing in the colony’s galleys was likely to keep them praying.

Additionally, the horrific punishment of being drawn and quartered was thankfully abolished in 1870. Although this punishment was usually only reserved for treason, the fact that it ever existed puts a dark stain on humanity. The full punishment of drawing and quartering was a four step process:
First the individual was dragged on a hurdle to the place on execution.
Then they were hanged by the neck and removed from the noose just before death.
Then occurred probably the worst part of the punishment; they were disemboweled and their genitalia and entrails were burned before their eyes.
Finally, they were beheaded and their body was divided into four parts which were often put on public display.

Looking at historical punishments, makes one wonder how modern punishments will be viewed in a few hundred years. Will future Americans gasp in horror as they read about the atrocities committed in our day? Or will they laugh, considering our punishments and our reasoning trivial and silly?

10 February 2005

Next Few Days

From Friday to Sunday I don't think I'll be able to post anything.

Never fear, Yasmeen has agreed to step in and class up the place. She's promised one post a day and while she wouldn't disclose the content of each she did say something about the unified field theory, Blackstone, John Marshall Harlan (the first guy), and the influence of Al Azhar on modern Middle Eastern criminal law.

By the time I come back I probably won't be needed around here anymore. ;-)

Crime & Federalism: Does Jail Work?

An interesting discussion in the post and comments about whether short term incarceration works.

My experience is that for a significant portion of my clients jail terms are just part of life. While it doesn't happen often, I've had more than one client who wanted to serve time rather than get a large fine - usually they are not scared of jail and pretty clear headed: "I either do some time now or I get a fine, can't pay it, and do the time later (and still owe the fine)." I've also represented your basic homeless guy who commits a minor crime so that he has a roof, bed, and meals during the winter.

When these clients do get upset it is usually because they are going to lose their job. Mind you, I'm not saying that clients like going to jail. I'm just saying that for a number of them it's just another of life's inconveniences.

Now, the people who are from a fairly standard middle class background get scared half to death when they first go to jail. I'm a big believer that these folks shouldn't spend too long in jail - maybe a week, at most two. If they are in the jail for a short period of time there is a good chance they will be "scared straight." However, if they are there for long enough to acclimatize they realize that it's not really all that bad. Books to read, television to watch, basketball to play, meals brought to your cell, and all those fears about what the other inmates will do to you aren't coming true. Eventually, the worst problem becomes simple boredom. At this point jail becomes useless.

09 February 2005

In the News

1) This trial started in my local courthouse today. I didn't get a chance to go watch but rumor has it that the evidence in it may even be weaker than the article suggests. All of which has got to make the prosecutors nervous since the defense attorney involved is probably the best criminal defense lawyer in the Commonwealth.

2) In further Virginia news, the Legislature is trying to make youths dress in a more dowdyish style. I can agree as to not allowing guys to wear pants that hang down to their knees (judging from my clients that style is fading anyway) but I'll miss the low cut female jeans. Question: would the low cut jeans be legal if there was nothing under them?

3) Silly crime stories, including:
[S]everal years ago, Ketchikan police pulled over a young man and found pot in his car. The man said he had just purchased the car and that the pot must have belonged to the previous owner. The police told him to "tell it to the judge" (the previous owner).
4) A Justice in Ohio pled guilty to DUI. From the video tape:
[S]he insisted she could drive safely and repeatedly asked Stidham to let her go.

"My God, you know I decide all these cases in your favor," she said. "And my golly, look what you're doing to me."
5) Not to be outdone, "[a] Pennsylvania Supreme Court justice hid a small pocketknife in his carry-on bag after airport screeners told him it could not be carried on the flight."

6) Jury trials are expensive, long, require extra preparation, and often actually insert 12 people into the process who really believe in the words "innocent until proven guilty" and "proof beyond a reasonable doubt." Obviously, they must be done away with. Shameful.

7) Taken to the hospital, a suspect escapes in his underwear. Who says Virginia doesn't have mild winters?

08 February 2005

A Court Appointment

I'm sitting in court waiting for my clients' cases to be called. The judge is doing a pre-trial hearing up at the bench for some minor matter. Suddenly, from outside the courtroom we all hear a rising incoherent sound which coalesces into thumps a voice: ". . . wanna call my dad. [thump, thump] I wanna call my dad. MAN, I JUST WANNA CALL MY DAD!!" This is followed by more thumping noises and all but one of the deputies in the room leave quickly out the exit toward the holding cell. Things quiet.

A couple minutes later another pretrial hearing is in progress. The door from the hall leading to the holding cell opens and a young man walks in flanked by two deputies. He's in a jail orange jumper and his hands are cuffed to a chain around his waist. His head has a gash on it which looks like it just stopped bleeding and there are two big swollen bumps on his shaven skull. He has blood on his arms from cuts around where the handcuffs are. Where the jumper has fallen off his neck and shoulder there are black ink tattoos. He's walking in a way which is hard to describe except to say that I think every man in the court instantly knew this guy is extremely dangerous and capable of an irrational and immensely powerful explosion at any second. As he gets through the door a third man (a guard from the jail) comes in behind him with a handful of the back of the defendant's coverall, controlling where he could walk.

I was sitting next to the prosecutor trying to negotiate when the guy was escorted in. They have to hold the guy over to the side so that the judge can finish the pretrial in front of her. Meanwhile, the prosecutor leans over and tells me: "There was a group of Troopers eating supper at a local restaurant last night. Their cars were parked outside and they were sitting inside eating. That guy came in, bought his food and left. He got in his truck and then spun it around in a circle in the parking lot 3 or 4 times and took off and led the Troopers on a chase."

A minute or two later the judge is pretrialing this defendant. She reads his charges to him and then asks him about what he is going to do for an attorney. He asks for a court appointed attorney. After a little dickering about whether he qualifies the judge looks up to appoint an attorney and - you guessed it - fixes her gaze on me. "Mr. Lammers, would you represent this gentleman?"

Of course I will. I walk up to the bench and we figure out what date the next hearing will be on. Then we start to address bond. My client says some incoherent things about the bumps on his head and wanting bond in slurred speech. The prosecutor suggests that I go out with my client, discuss bond issues, and come back in for a bond hearing. I'm all for that and the judge agrees so I walk out of the court as the newest member of my client's entourage.

Once we are out in the hall the deputies turn around and go back into the court. The two guards from the jail both hover nearby, one within 5 feet and one within 8-10. My client asks not to be put back into the cell so we sit in the hallway and talk. Obviously, I cannot disclose the matters discussed. However, I leave the conversation, return to the courtroom, and tell the prosecutor that I am going to ask for evaluation as to competency and sanity at time of offense. The prosecutor walks over to the clerk, I follow, and the clerk prints out the proper form.

After I fill it out the case gets called back before the bench. The judge thinks it's going to be a bond hearing but we tell her that it's changed into a hearing requesting a mental evaluation. The judge looks at me and says, "I think your client has to be here for that." The clerk looks up and shakes her head in agreement. I say, "Your Honor, that's going to be somewhat problematic." At this point my client starts yelling loudly and incoherently from his cell and there are more loud thumps. The judge then states, "But, if he's acting in such a manner that it is unsafe to bring him into the courtroom he can be deemed to have waived his right to be present and I find he has waived that right." She then signs off on the paper.

A deputy tells me that my client's father is present and would like to talk to me. However, before I can talk to him my first case of the day is called. I try the first case and then have to duck into the clerk's office to get some papers copied. I find the assistant clerk and another attorney staring out the back window. My client is standing at the back of the jail van. His back is to the van and he is standing off four deputies. His father is out there trying to calm him down so that he will get in the van. Just then a deputy comes in from the court and tells me that my next case has been called. I go try my case.

By the time that I've finished the father is sitting in the courtroom again. We go outside the courtroom and I explain to him what is going on. He is not upset at all that his son is not getting a bond and is getting a mental eval. However, he wants to know how to get his son's truck out of impound. So I walk him around the outside of the building to the clerk's office. While we are walking around the building the father tells me how the deputies finally had to capstun his son in order to get him in the van and even then had a very hard time doing it.

Once we get to the clerk's office we find the prosecutor who says he doesn't need the truck for evidence and a deputy who is willing to help Father contact the State Troopers and get the truck back. Before the deputy leaves he shows me pictures of the other inmate whom my client head butted this morning (he had a big knot on the side of his head). Then he shows me the damage my client did to the holding cell before they could stop him. There was blood splattered on the wall where he was hitting it with his head and he put a head size hole in the plaster over the bricks. He insinuated that more charges would be coming down the pipe.

And thus it begins . . .

Around the Web

1) It appears that Gus has been the recipient of a dog non-search.

2) Prosecutors should get paid more than PD's because, ummm, because, uhhh . . . because they do more work?

3) Apparently everyone in the House of Commons was arrested yesterday because of a new organized crime bill. However, there seems to be some concern that the House of Lords won't allow itself to be cleared out so easily.

4) The state of insanity.

5) Wow. A two day trial is short? In Virginia a two day trial is an eternity.

6) Hmmm . . . Feticide charges in Virginia. As I remeber being told in law school there was a distinction in the common law between a fetus before quickening and after (punishment could occur after). I wonder whether the same distinction pertains to modern law.

7) SoCalLaw points to this article which, if true, is a monumental error on the part of the Jackson prosecution:
[O]ne [porn] magazine reportedly had the fingerprints of both Jackson and his accuser on the same page.
. . .
We know when this accuser testified before the grand jury he handled these magazines. At one point, one of the grand jurors asked, 'Have these magazines been fingerprinted?' And the sheriff said, 'No.'
8) Alan Dershowitz trashes one of my favorite movies because the defendant was innocent.

9) Is it more offensive to steal from the Simpsons or Gilbert & Sullivan?

07 February 2005

4th Amendment Brief

[note] What follows is a brief written in support of a motion to suppress. The argument was won today and I'm now waiting to see if the prosecutor is going to appeal the suppression.
---------- ---------- ----------


Officers found three persons in a motel room - 2 females and 1-male. The male [who had rented the room] agreed to allow the police to search the room. The police found a bag that was either a purse or makeup kit. The male was dressed in normal male attire and there was no indication that the purse belonged to him. The officers did not ask either female if they could search the bag. [Contraband was found in the bag.]

Upon a motion to dismiss there was some question - because of its age - as to whether the case relied upon by the Defendant. United States v. Block, 590 F.2d 535 (4th Cir. 1978). is still a valid interpretation of the constitution. A brief was ordered to discuss this issue and the 4th Amendment as applied to this case.


1) Is Block still a valid interpretation of the 4th Amendment of the federal constitution??

2) What is the proper application of the 4th Amendment in this case?



Block continues to be applied in the 4th Circuit Court of Appeals. In 1992 the Court referred to Block when a cotenant became frustrated with police refusal to search and used a key to open a closet and give the officers the firearms within. United States v. Kinney, 953 F .2d 863 (4th Cir. 1992). In 2001 the Court directly applied Block when it ruled that a co-user of a computer could not consent to a search of those computer files to which he had no access. Trulock v Freeh, 275 F.3d 391 (4th Cir. 12/28/2001).

Block is still used around the nation as the case on point in this type of fact pattern. In 2004 the 6th Circuit cited Block for the proposition that permission given by a cotenant to search a residence did not extend to defendant’s private car. United States v. Gillis, 358 F.3d 386 (6th Cir. 2004)(but allowing the search because the car s windows were missing and anyone on the
street could have gotten into it). In 2004 an Illinois appellate court relied on Block in reversing a conviction. People v. Miller, 806 N.E.2d 759 (l1l.App. Dist.2 2004) (cotenant cannot consent to search of zipped duffel bag belonging to defendant). In 2003 the 8th Circuit referred to Block
when it ruled that backup copies of disks kept in a sealed envelope at a 3d party’s residence could not he searched with only that 3d party s consent. United States v. James, 353 F.3d 606 (8th Cir. 2003). In 2003 a Maryland appellate court relied on Block to rule that it was unconstitutional for police to search a car by permission of the mechanic after the work had finished but before it had been retrieved by its owner. Seldon v. State, 824 A.2d 999 (Md.Sp.App. 2003)("Third party consensual searches, however, are [per Block] limited to items that are clearly visible").


The principle laid out in Block, that a third party can acquiesce to a search of a generally shared area but not to an object or area not shared, is widely accepted and long standing. See United States v. Wilson, 536 F.2d 883 (9th Cir. 1976)(3d party cannot approve search of defendant’s suitcase), Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955)(3d party could not approve search of a locked cabinet), United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992)(3d party cannot approve search of defendant s suitcase), State v. Miyasato, 805 So.2d 818 (Fla.App. Dist.2 2001 )(parents cannot approve search of adult son's desk in their mutual house). & State v. Grant, 614 N.W.2d 848 (Iowa App. 2000)(homeowner cannot consent to search of guest s jacket). Indeed, a 3d party cotenant cannot agree to a search of other people s luggage in her same motel room. United States v. Bussey, 507 F.2d 1 096 (9th Cir. 1974).

It is clear that the male who agreed to allow the police to search the general area of the motel room had no actual authority over the purse. Should the government try to rely on apparent authority the fact that the contraband was found in a purse makes that assertion very difficult. In fact, "it is less reasonable for a police officer to believe that a third party has full access to a defendant’s purse or a briefcase than, say, an open crate." United States v. Basinski, 226 F.3d 829 (7th Cir. 2000)(one man could not approve the search of another man's briefcase). Perhaps, had the 3d party who had consented to the search been the other female the prosecution could make a credible claim for apparent authority. However, both officers identified the male who allowed them to search as being dressed in a manner which is typically masculine and cited no factors which would indicate he was carrying a purse or makeup kit.

WHEREFORE, the Defendant renews her motion to have the contents of this search suppressed as a violation of her 4th Amendment rights. As well Defendant moves that any evidence gained subsequent to this search which proceeded from the search be suppressed as fruit of the poisonous tree.

Teaching Serial Murder

Professors are teaching lessons based on the BTK Killer.

In the Net

1) How hard can it be to find a truck full of stuffed Goofys?

2) Identity theft in the UK.

3) "Mom, I need a ride to the robbery . . ."

4) The "DDOS Mafia"?

5) Police surrender to the "Sandal Mafia"?

6) A prostitution web site run from China? Well, okay, a prostitution web site which used to be run from China.

7) "Rap mogul Marion "Suge" Knight was booked on suspicion of violating his parole after police found marijuana in his truck during a traffic stop, authorities said yesterday." And, boy-o-boy, won't that be a fun hearing?

8) If you break into a grave they will arrest you, even if your motives are benign.

Request for Help- Student

This was a comment on my last post:
Hi, My name is Miguel Medrano I study Law in Mexico (UDLA-Universidad de las Américas, Puebla) I´m doing my tesis about the Treaty Of Penal Sanctions between U.S. and México (1977) and I need to do a comparison between the American legislation and the Mexican legislation. It have been very hard for me to find the steps or the process of sentencing in America. The legal basis and the authorities that are involve whith this process.

I would like to get some help from you in this issue. I will appreciate your help.
And thanks for your time.

Miguel Medrano
ps: My mail is mmethuain@hotmail.com
I figure there has to be someone out there who is better qualified (I've not even heard of the Treaty of Penal Sanctions) and has more time. If someone is willing to help this gentleman please leave a comment here so that I know someone is stepping up.


04 February 2005

From the Fighting Fourth

Judge Wilkinson (that's right Judge Wilkinson):
No person should be executed in America on the theory that his life is of less worth than that of someone else. This principle is not only clearly established in federal law; it is anciently so. Neither a defense attorney, nor a state court judge, nor his federal counterpart should need any prompting to object to a death sentence that is premised on a principle of comparative human worth. Because the majority’s opinion fails to respect the ban on such comparisons, and in the process strays perilously close to endorsing them, I respectfully dissent.

There should be no doubt that this case presents a violation of this sort. The prosecutor made no bones about what he did. He baldly compared the general worth of the victim’s existence with that of the defendant and urged the jury to impose a death penalty on that basis. This sort of argument should not serve as a prelude to any sort of punishment, much less to a capital sentence.
Link here via How Appealing

Around the Web

1) "Saying "I strongly object" marks you as an amateur. Saying "that would be reversible error" marks you as a threatening amateur." Yeah, but no matter how much of a professional you are, it is always going to be tempting to say it.

2) What happens when a judge threatens a lawyer for representing the will of his client?

3) Your honor, when the law says the death penalty requires two defense lawyers at trial you will be overturned if you don't provide the second one.

4) I must say that I was surprised when President Bush said this in the SOTU.

5) Hasan Akbar is having trouble remaining awake during his trial for killing fellow soldiers.

6) "Citizens of Al Mudiryiah were subjected to an attack by several militants today who were trying to punish the residents of this small town for voting in the election last Sunday.

The citizens responded and managed to stop the attack, kill 5 of the attackers, wounded 8 and burned their cars.

3 citizens were injured during the fire exchange
Not criminal law but impressive as all get out.

7) Has "modern psychiatry reinvented confesstion and penance?"

8) How does a DUI death become a murder?

9) Y'know, hiring someone who's been convicted of a crime and has a good working relationship with the guys in the jail might actually make sense at a PD office. ;-)

10) AOL spammer convicted.

11) It's good to know that dislike of lawyers doesn't only exist here in the States:
Our profession is continually under scrutiny and what disturbs me is that the mistrust of lawyers does not seem to be lessening. Some people still scoff at us.

They seem to expect to be cheated by a lawyer at any given time. Some will even be seen to count their fingers immediately after shaking hands with a lawyer
12) A lawyer truly dedicated to getting his clients out of jail. He goes a little further than I might be willing to.

13) "Cynthia George paid for her lover's defense, not as ``hush money'' but with the hope that his acquittal would exonerate her in the alleged murder conspiracy."

14) How are Mob bosses always perfectly coiffed?

15) I don't care if you are a policeman, don't mess with this guy's wife.

16) Wow. I wonder if a judge will let me do this the next time my client is late for court: Trial over the phone.

17) Yup, I own most everything on this blog. But then, who would want it anyway?

18) No fun in South Africa. You can't be a pimp and a lawyer.

19) Cops really aren't supposed to rob banks. At least, that's the way it works in America. However, in other countries . . ..

20) Felony sale of Duff beer.

03 February 2005

Withdrawn Guilty Plea Affords Little Protection

Today, the U.S. Court of Appeals for the Fourth Circuit held an oral argument session which I attended. They listened to oral argument for a criminal case, U.S. v. Wallace on appeal from the U.S. District Court for the Southern District of West Virginia. This case has not gone to trial yet and is on appeal after the District Court judge granted a motion to suppress evidence. The District Court judge found that the statement made by defendant after a plea agreement was entered was prejudicial under Federal Rule 403.

The interesting question (though not at issue on appeal) brought up by Justice Williams was why Federal Rule 410 did not apply to the case. The Trial Court allowed Wallace to withdraw her plea of guilty under Federal Rule of Criminal Procedure 32(d) after finding that there had been miscommunication with her lawyer. Under Federal Rule 410(1) this withdrawn guilty plea cannot be used as evidence against Wallace. However, the statement that she was required to give as part of the plea agreement, is allowed as evidence under this rule. See United States v. Davis, 617 F.2d 677 (D.C. Cir. 1979). .

Although this is the current federal rule, it is strange that when the Court allows a guilty plea to be withdrawn, it treats the plea as if it never existed. Yet, it allows the statements of the defendant into evidence that would very likely have never been made if not for the plea agreement. Thus, the government can use these statements against the defendant without adhering to the agreements made in the plea bargain.

02 February 2005

Dockets and Mandates from the Mount

The courthouse at which I do about 80% of my work is a pretty busy place. The General District Court always has at least one criminal and one traffic court going. Once upon a time it had a case docketing system1 that worked better than I've seen elsewhere. Now, I'm not saying it's the best in the Commonwealth, just that it worked well. Then the Virginia Supreme Court intervened.

Now, there is this big mythos about how this came about. Hearsay to the nth degree has it that the Chief Justice got a ticket in another county (which shall remain nameless) and then spent several hours in court waiting for his case to be called only to have it continued. Then he came back and spent several more hours waiting before someone realized who he was and took care of it that instant. From this experience the Chief Justice decided that the docketing system in all jurisdictions needed to be fixed. Is this really what happened? Who knows? Attorneys gossip just like everybody else and this could all be a foundationless rumor. I couldn't even tell you who first told me the story but I've heard it a number of times.

Anyway, a command came down: no one is to wait longer than a hour to have their case called. The general reaction among those who work in trial courts was something along the lines of "He's got to be kidding." He wasn't. So courts started changing their dockets so that the dictate would appear to be followed. I say "appear" because the goal, while laudable, isn't realistic.

My primary jurisdiction used to run like this: There were two times at which cases were docketed, 8:30 a.m. and 1:00 p.m. Court would always start a little late so that cases could be discussed and deals cut.2 In fact, local lore has it that the reason the judges decided to start at 8:30 in the morning was so that all this could be done before 9:00 a.m. when court was really supposed to start. Anyway, by doing this court usually starts 15-20 minutes late but saves all sorts of time by resolving things so that they are a 5 minute plea rather than a 30 minute trial. It also allows the deputies and clerks time to work in conjunction to determine who is going to ask for a continuance, ask for driving school, plead guilty, or have a hearing.

Once the judge sat and cases began to be called there was a certain order. Continuance requests came first. Guilty pleas came second; in traffic court there would also be traffic court requests at this time. Finally, there were preliminary hearings and trials. Even then, the clerks and attorneys tried to estimate how much time a hearing would take and place the longer ones at the end. Of course, there were days when the docket would run long and there were days when the docket would be done in 1/2 a hour but I'd estimate that the average time from the first case called to the last was probably about 2 1/2 hours.

I can already see the eyebrows raised out there in cyberspace. 2 1/2 hours to have your case called? Isn't that a long time to sit in court? Well, yes. But you must realize that not many people have to wait that long and those who do are often the one's in lockup already (who are going to be waiting somewhere whether they've been tried yet or not). Most cases fall in the guilty plea category and there are always a fair number of continuances. I'd say 80% (maybe even 90%) of the people who walked in the front door were out of the court within a hour to a hour and half. Then came those few who had trials or preliminary hearings.

It worked. It didn't suffer from the flaws of the old-style cattle call with every defendant for the entire day arriving at 9:00 a.m. and the court running until the judge decides to break for lunch and then starting back up and running until everybody was finished. Under that system a lot of people could spend 3 or 4 hours in court (more if you were unlucky enough to be called after lunch). Nor did it suffer from the flaws of dockets which are split into time periods which are too small and always have troubles because of their inflexibility. OMG you've never seen a docket more screwed up than one where there is a series of hearings set to take five or ten minutes at specific times over 3 hours and the third hearing actually has witnesses and a legal argument running a hour plus and throwing off the rest of the docket. A docket which invariably runs late because the estimated time per hearing is always too short (although it can run on time if there are enough failures to appear) gets thrown off so that everybody gets stuck in court longer and longer and longer.

But of course, all that's over now. Our dockets are now split so that someone who looks at them on paper will think that everyone is getting in front of the judge in a hour. We now have dockets at 8:30, 10:00, 1:00, & 2:30. It messes everything up. The 8:30 and 1:00 dockets run pretty much as they did before and most of the people get out in a timely manner. However, the 10:00 and 2:30 dockets are bad.

Those people who come in for the later dockets are stuck in court waiting for the earlier courts to end. Somebody who comes in for a continuance doesn't spend the 30 minutes he might have before waiting for his case to be called. Now he has to wait for the two preliminary hearings and the 6 witness A&B cross warrant case to finish before his continuance. After that there's probably going to be a recess during which the lawyers talk over the cases for the next docket and the clerks try to figure out how the citizens in the next docket will be pleading so they can be arranged efficiently. Everybody's pushed back and most wait for a longer period than they would have previously.

Our clerks and judges aren't dumb. They've limited the number of cases being put in the later dockets in order to ameliorate this. Still, when all the courts used to closed before 4:00 almost every day and now courts are open not too irregularly after 5 p.m. you know something is wrong. In the future, should these dockets expand the court will have a night court whether the General Assembly has agreed to pay for it or not (and somebody's got to pay those deputies and clerks).

All-in-all, it's probably the best solution for a bad situation. Our judges can't ignore a command from the Chief Justice so they try to make it cause as little damage as possible. I'd bet good money that the average time a defendant spends waiting for his trial has increased because of this. How much? I don't know. Hopefully, with the damage control that is being done, not too much. Maybe we'll find out when the next wave hits; the rumor mill has it that the Supreme Court's next move will be to make the general district courts time each case. Wanna see some bogus record keeping? Just wait until the already harassed clerk has to write in a length of time for each and every one of the 75 people who are asking the judge for traffic court. 30 seconds, 30 seconds, 30 seconds, 30 seconds . . . .

1 For those of you who don't speak "courtese" docketing is the setting of cases at a particular time.

2 Why don't we work all these things out ahead of time? Well, a lot of times the court-appointed client only contacts the defense attorney on the day of court. The prosecutor may not be able to contact his witnesses before court (especially in a civilian sworn complaint). Defense attorneys aren't given copies of the police report and often interview the officer in the courtroom to find out his side of the story. Sure, I could call every officer about every misdemeanor but I'd spend most days playing phone tag all day with officers and about the 8th time in one month I call officer Smith about a reckless driving by speed (over 80 mph) he's probably going to stop returning my calls. I want officer Smith to call me back when I call him about the vehicular manslaughter case.

01 February 2005

Around the Web

1) Ever creative AUSA's have started putting into plea agreements a provision which will allow both the prosecutor and defense out of the agreement if the judge sentences outside the range agreed to. And do what? The defendant's already sentenced and an appeal of the use of discretion would have to show it unreasonable.

2) Forcing Mexican-Americans to learn English - iffy. Forcing a woman who is probably Catholic to consider birth control - definitely across the line.

3) When the 4th Circuit tells the State that it has to turn over files dealing with a police investigation for a civil suit you know its not an opinion based on softness of heart. Still, Virginia is going to take one last stab at keeping the papers which could reveal why an innocent man was almost executed from being turned over to him.

4) Ever wondered about what might happen after Hiibel? Well, you can get arrested for not telling the officer anything about your insurance.

5) The judge keeps out some fairly weak evidence in a terror trial.

6) Whatdoyaknow? Traffic cameras lead to more accidents.

7) Norway fines a guy 15,000+ for his school project. Remind me not to pursue further education in Norway.

8) A tale of many lawyers, told in memoriam. LvA&C

9) A nice calm month at the office torpedoed by stealth briefs.

10) How the police view all of us in our tragic moments.

11) As I live and work in a State where the law of evidence is common law, I think I'll try this objection: "Objection your Honor, this has got to be the most boring drivel I've ever heard." And then I'll cite this post as my legal foundation.