03 May 2005

The Jury Trial - A Second Day's Reflection

Yeah, I admit it, I was not a happy camper yesterday when I posted about the jury. After a day's reflection let me make the following comments:

(1) The first 30+ minute recess for the prosecutor to get his witness to court actually should have helped my case. The prosecutor had agreed to stipulate that my client bought the firearm and that the clerk who sold it had called the state police to check that he was eligible to buy the firearm. When the trooper we were waiting for showed up he testified about the computer being screwed up. It should have helped me.

The prosecutor focused on the clerk as the "agent" of the government while I pointed to the assurance from the state police as a "body" which was tasked with informing people whether or not they can purchase a firearm. I just cannot seem to get this judge to follow my train of thought. I believe he is acting in good faith (and he's definitely a decent sort off the bench) but I can't get him away from the prosecutors' arguments. He ruled against me. I don't remember him saying exactly why but the reason I can reconstruct would be a reliance on this case (which he mentioned during the argument) which quotes a 7th Circuit case for the proposition that a "private firearms dealer licensed by government [is] not [a] government official." Of course, that's not what I was arguing but somehow I must not have gotten that across.

(2) The Religion Question on Voir Dire: My understanding is that under Witherspoon the prosecution is allowed to ask if jurors cannot impose a certain sentence. The prosecutor wasn't asking that question; of course, the prosecutor in a case with a 5 year mandated sentence is going to hide the consequences of a conviction from the jury. He was asking if anyone would have problems passing judgement because of their religious beliefs. Although I've not researched the matter (because I have not used it on appeal), there are a couple of prosecutors hereabouts who ask it. I object every time and I've yet to hear one iota of authority raised by a prosecutor or judge for that question.

(3) So much for "a court speak[ing] through its orders and [courts] presum[ing] that the orders accurately reflect what transpired." Waterfront Marine Construction Inc. v. North End 49ers Sandbridge Bulkhead Groups A, 468 S.E.2d 894, 251 Va. 417 (1996); McBride v. Commonwealth, 480 S.E.2d 126, 24 Va.App. 30 (1997); Woodfork v. Commonwealth, 31 Va.App. 154, 521 S.E.2d 781 (1999); Legette v. Commonwealth, 33 Va.App. 221, 33 Va.App. 221, 532 S.E.2d 353, 532 S.E.2d 353 (2000); Marttila v. City of Lynchburg, 33 Va.App. 592, 33 Va.App. 592, 535 S.E.2d 693, 535 S.E.2d 693 (2000); Howerton v. Commonwealth, 36 Va.App. 205, 548 S.E.2d 914 (2001); Rose v. Commonwealth, 37 Va.App. 728, 561 S.E.2d 46 (2002); Hudgins v. Commonweath, 40 Va.App. 1, 577 S.E.2d 505 (2003); & Wilson v. Commonwealth, 40 Va.App. 250, 578 S.E.2d 831 (2003). And those are just the published cases.

At the motion to strike the evidence the prosecutor hadn't introduced anything concerning the disposition hearing which resulted in the Disposition Order. Part of the reason that he wanted to make sure he got the "rebuttal" witnesses in is because he wanted testimony to rebut my argument, made both in the opening statement and the motion to strike, that the final order in the case spoke for itself. The fact that the case should have been struck at the end of the prosecutor's case in chief does not matter in Virginia because the appellate courts consider the case in toto. Of course, the best his "rebuttal" witnesses were able to testify to was the lack of changes on paperwork or files which they did not generate because they weren't in court at the disposition. None of that should be dispositive because even a transcript is considered so subject to flaws that it does not over ride the actual order:
It is true that the transcript fails to show that the right of allocution was extended to Stamper personally by the trial court, although it appears that opportunity was afforded him to speak if he so desired. However, the final judgment order entered by the trial court on February 9, 1979, contains this language:

Whereupon, the Court taking into consideration all of the evidence in the cases, the report of the Probation Officer, the matters brought out on cross-examination of the Probation Officer and such additional facts as were presented by the defendant, and it being demanded of the defendant if anything for himself he had or knew to say why judgment should not be pronounced against him according to law, and nothing being offered or alleged in delay of judgment, it is accordingly the judgment of this Court...

The order, entered without objection, suspended execution of sentence in each case pending action upon appeal and appointed Stamper's trial counsel as his attorneys to represent him in his appeal.

In the absence of objection, we deem the order of the trial court to contain an accurate statement of what transpired. If it contained an incorrect statement of fact, counsel for Stamper had 21 days after its entry on February 9 to have it corrected. Rule1:1. They did not do so, although the transcript was filed on February 15, and we presume that the order, as the final pronouncement on the subject, rather than a transcript that may be flawed by omissions, accurately reflects what transpired.

Stamper v. Commonwealth, 257 S.E.2d 808, 220 Va. 260 (1979).
There was no introduction of any objection by the prosecution to the Disposition Order so the Order was the final word on the matter.

(4) The most frustrating thing about this case is that even if the Order and other paperwork didn't establish that my client wasn't a felon he sure as heck didn't know he was a felon. In juvenile court the proceeding for felonies and misdemeanors is exactly the same. I guarantee you that kids walk out of that courthouse every week not understanding they've been found guilty of a felony offense.

Of course, that's not a problem for the prosecutors in Virginia because the Court of Appeals has ruled that you don't need to know you're a felon to be convicted of being a felon in possession of a firearm. The only intent needed is the intent to possess a firearm. Branch v. Commonwealth.

AAaarrgggggg!!!! Maybe it's time to go start up a real estate practice.


Anonymous said...

You know Ken, if you're gonna tell these kinds of sob stories, you might want to put out a tip jar to see if people will drop in a few coins for the poor and downhearted. I had an urge to buy you a beer or a lapdance or something to take your mind off your troubles...but it's passed now.

Ken Lammers said...

Gotta unwind somehow. I don't drink as much as back in the day so getting blitzed isn't really an option nowadays (anyway, sometime a few years back the next morning just started to hurt too much). And I'm a little too old to go out and play rugby anymore; being in the scrum was a wonderful to work off the left over emotions.

Nope, all I can do is vent here. Just imagine what I might be saying if this blawg were anonymous. ;-)

I'd almost be tempted by that lap dance but I'd probably be right in the middle when I'd look up and realize she's one of my clients. That would just be too much of a hassle with the bar.

Anonymous said...

Religion on Voir Dire.

I've been prosecuting since about 1997 and almost in every single case I try either myself or the Judge asks the question if anyone has religious beliefs which would prohibit them from passing judgement on someone else.

Sometimes we both ask it, although if the Judge asks it, I will genenrally ask the non-religious angle to the question "Would anyone here have trouble convicting someone in a drug case due to a policy stance." It is not uncommon to get someone saying they favorite legalization of marijuana so they cant' convict someone of selling or growing marijuana.

Once or twice I've gotten the response that the person in question can't sit in judgement on a drug case because the have a realtive serving a federal drug offense in the nearby federal prison.

As to authority for the question, well I don't know what it is. There has to eb authority somewhere, since the Judges who ask the question are the types I know are always diligent to obey and follow the law.

The penalty range is acutally more asked by defense counsel to see if the Jury can consider the full range of penalties in the case.

Anonymous said...

By the way. Please excuse the spelling errors in my recent postings. I've been home sick and have taken quite a bit of cold medicine.

Ken Lammers said...

Not gonna see much fussing about spelling from yours truly. If it wasn't for spell check this page'd be a mess.

Now if I could only get then - than and lay lie squared away . . .

Anonymous said...

Religion on Voir Dire

Since my Criminal Procedure final is in a few days I thought I would look this one up.

See John H. Mansfield, Peremptory Challenges to Jurors Based Upon or Affecting Religion, 34 Seton Hall L. Rev. 435 (2004). Not sure how much Lexis charges for law review articles, but it is on point.

From the article:

In recent years the Supreme Court has held that peremptory challenges based upon race or sex, and possibly ethnicity, violate the Equal Protection Clause. The Court has yet to decide whether religion-related peremptories also are invalid, although a number of lower courts have struggled with the question and reached conflicting conclusions.


[Courts allowing peremptories based on religion] See, e.g., State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 511 U.S. 1115 (1994) (allowing a peremptory challenge based on juror's being Jehovah's Witness and going to church three times a week, and prosecutor's experience that Jehovah's Witnesses were reluctant to exercise authority over others); Casarez v. State, 913 S.W.2d 468, 492 (Tex. Crim. App. 1995) (en banc) (holding that peremptory challenges based on jurors' being members of Pentecostal Church did not violate the Constitution).

[Courts that don't] See, e.g., State v. Hodge, 726 A.2d 531, 550-56 (Conn.), cert. denied, 528 U.S. 969 (1999) (holding that peremptories based on "religious affiliation" violate Equal Protection Clause, but noting that the challenge in question had a different basis).

Ken Lammers said...

It doesn't really matter because nobody was struck because of it. Thus no error preserved or at the most harmless error.

I preserved it in one case but the client decided not to appeal.