26 May 2006

Can't hit your girlfriend with a plastic pipe.

Even if she has stolen your disability check.

What is the value of a day in jail?

Blonde Justice discusses at what point someone should choose to go to jail rather than do alternative programs.

20 Years for Grand Theft Goat

The lesson here is that maybe honesty with the judge isn't the best policy.

Odds and Ends

1) Sorry, Mr. Prosecutor. He's too short to go to prison.

I can't wait to try that argument.

2) Slapping the police officer is pretty much a one way ticket to jail.

3) Maine mandates that we all must love homeless people.

4) Half the pubs have cocaine residue.

5. Yeah, I'd probably be suspicious that someone was a drug mule if he flew in with pickled fish filets.

Bugging a Jail Pass

It puts that little guest pass every jail / prison makes you wear in a new light.

Is the death penalty allowed . . .

. . . when you didn't allege any of the requisite aggravating factors at the prelim?

Pakistani Electronic Crime

Pakistan is developing an agency to fight electronic crime.

Muhammed v. Malvo

Confrontation in the courtroom.

25 May 2006

Odds & Ends

1) Yeah, those medical marijuana clubs are about helping people. Really, they are. Honest.

2) Being a firebug shouldn't keep you from governing - at least in Scotland.

3) Wondrful. Crying rape to avoid paying the fare.

4) Cold? Drunk? Can't get the police to arrest you? Go away and come back to the police station with a stick and bottle and threaten break the place up. I just wonder if she said "I'll be back."

5) If a police officer does a kiddie sting on you you go to prison. If a news agency does the same thing to you you walk free.

6) I don't care how funny the deceased would have found it, when you turn the body over to the family you have to give the head back too. Well, maybe not if it's in Australia.

7) For goodness sake, don't boast to a jailhouse snitch that you could get away with robbing the police station.

8) Hubris: (noun) The act of disrupting a community event which is important to your classmates and their families because you think it should be about you. Just Desserts: (noun) Getting hauled off the stage and getting the charge you so richly deserve.

9) For some reason those nutty New Zealanders seem to think that driving 75 miles per hour "using one foot to steer and the other to operate the accelerator and brake pedals" is dangerous to the public. But how else is a man without arms to drive? They must not have a version of the ADA over there.

10) Okay, it's got nothing to do with crimlaw, but I think this is hilarious.

24 May 2006

Teacher Drunk & Insane

You just can't come to school and send a boy out to your car to get your booze while you make passes at the 13 year old girls.

Muhammad in Maryland

1) He's screwing up his trial.

2) His cohort has turned on him, spinning tails of fantastic murder plots and plans to train other kids to kill.

Internet Crime

1) Germany has taken down a file sharing network and charged 3,500 people. How many of those does anybody believe were sharing files for "commercial purposes?"

2) Sadly, 2.8 million of my fellow U.S. citizens were too dumb to realize that "YOU HAVE WINNED INTRANATIONAL IVORY COAST LOTTO" is a scam.

Charging an 8 Year Old With Homicide

Does anyone really think it's appropriate? This kid's going to have problems enough dealing with this for the rest of his life.

New Zealand Kidnapping

Abduction shan't gain you that million dollars if they don't have it, but a story like this will probably get you a lot of prison time.

How do I get cases where I have clients awarded 13.5 million?

I swear I won't steal it.

Comix on Drug War

Warning, some offensive language.

Bin Laden Refutes Moussaoui

He doesn't quite say "You think we'd trust that idiot?"

If They Haven't Figured Out You're the Murderer . . .

. . . it's probably in your best interest not to go out of your way to give them an opportunity to do so.

What? CSI ain't so?

The crime lab director in the Philippines learns the bitter truth.

They Took Your Guns . . .

. . . now the U.K. is taking your knives. What next, your fists?

Pennsylvania Police Not Reporting

A law in Penn requires police to report crime statistics. However, not everyone is bothering to comply.

A Report on British Crime

An organization has released a list of the crime hot spots in Britain.

Can Trials be Held in New Orleans?

They're going to try to reopen their criminal courts.

Which begs the question of what they've been doing with those criminally charged to date.

23 May 2006

Sicilian Flu

Buried in a story about mobsters faking illness to avoid prison is this gem from a mob "expert":
When you start to think of the lifestyles these guys live, there's a good chance it's not going to be so healthy. One of the things that always fascinated me is that these guys didn't die earlier.
Yeah, I hear the potential for lead poisoning is fairly high in that line of work.

Gotti Indicted

I can hardly wait. The Gotti trials always make for the best quotes.

Texas Rides Again

As I've said many a time here on the blog, every time I get really depressed about the state of criminal justice in Virginia all I have to do is look at Texas.

Colombian Military Shoots Policemen

A Colombian military patrol shot and killed 10 undercover police officers.

Officer Shoots Officer

In Norfolk, Virginia an officer in civilian clothes was shot and killed by another officer in the middle of a confrontation with locals.

Making Kissing a Crime

In fact they want to make it a class 6 felony (5 years).

The Fiends are Caught

You know, if you're dumb enough to use email from the house you're robbing you deserve to get caught.

I'm a WHAT?

During criminal records checks at least 1,500 people (more likely 3,000) in Britain were falsely identified as sex offenders. The government said the errors were regrettable but refused to apologize. After all, why should a government apologize for falsely labeling someone a sex offender? That can't have too much an effect on his life and livelihood, Can it?

Violating the Will of the People

Whether you agree with the death penalty or not, it's pretty shameful that the federal govenment is forcing it into parts of the US where it has been done away with by the will of the people as expressed by their legislatures. Rebuffed in Puerto Rico (how desperate do you sound when you're talking about how one juror supported your position?) the feds succeeded in Vermont.

Anticipatory Bail?

In India the editor of Maxim is denied anticipatory bail by the Supreme Court on the following grounds: "This is a blatant attempt to increase your circulation. We will not interfere with the high court order."

Was My Data in There?

Data about 26,500,000 vets was stolen when a VA employee took it home.

Arrrgggg!!! Flashbacks . . .

Of course, Orin leaves out the important bit of information in his law school question: 1) Do you have a ginormous software/internet service provider in your State which tells the General Assembly that it needs this law?

There's a reason adhesion contracts - which we all learned in law school are repugnant to the law - aren't in Virginia. It has three initials.

22 May 2006

The FBI, FCC, & "Your" Computer

"[S]ome unelected bureaucrats at the [FCC] have decreeed that Americans don't have the right to use software such as Skype or PGPfone if it doesn't support mandatory backdoors for wiretapping."

Sheriff Arpaio

The country's most interesting sheriff has started doing sweeps of the desert to arrest illegal immigrants because they have taken part in a smuggling operation - they smuggled themselves across the border. I kid you not.

The Sheriff, he does have his fans.

'Course, he also has those who slightly disagree with him.

How bad off does an attorney have to be . . .

. . . before a judge orders him tested for cocaine.

Need More Money

Shockingly, law enforcement in Huntigton is claiming it needs more money because of the proliferation of drugs.

How behind the times can you get? They don't even mention terrorists or gangs. Do they really think they can get more money without pointing out the dangers that Al-Qaida or the Crips might have infiltrated West Virginia?

Maybe They Need the Shoe Print Database in NZ

The jury had wanted to know more about whether Konia's hand or footprints had been matched to those found at the scene, how some "hooded" men were discounted from police inquiries, and more about Mrs Walden's purse, wallet and handbag.
. . .
The jury also wanted repeat viewings of security camera footage from the pub in Feilding and taken outside a liquor store in the town, which Justice Young allowed to be replayed.

Chief Ngcobo

Police in Johannesburg plan to march in protest of corrupt internal affairs officers.

Med Insurance Theft

Hmmm . . . Not yet had a case wherein someone stole an identity so they could get medical care.

By the Book

Procedure when searching for a missing child.

So, how do we make sure criminals keep wearing the same shoes?

New Zealand is establishing a national shoe print database.

The Witnessing a Fight Exception to the 4th Amendment

The federal supreme court has ruled that police who see a fight in progress do not have to knock before entering the house where the fight's happening. To which Justice Stevens says, "DUH!"

Gangs Among Us

Yes, the latest law enforcement fad / boogeyman has reached Maryland.

Not that there aren't some really nasty gangs out there but since federal funding became involved everybody who even thinks of doing an illegal act is suddenly a gang member.

No Father

Anyone who has been doing this kind of work for any period of time notices that few of the younger defendants have fathers.

21 May 2006

Slavery in the U.S.

Immigrants sucked into horrible lives.

Bad Press = Government Forthcomingness

After getting plenty of bad press for raiding a Congressman's
office without revealing the affidavit upon which the warrant was based the government relented and revealed part of it's (rather damning) evidence that the congressman is crooked.

That's right. For all of you who wondered what it would take to get government employees to work on a Sunday - now you know.

Women Behind Bars

No, it's not a bad 70's movie. It's for real.

The interesting part is that it seems the fly-over States are increasing the number of women incarcerated while the NorthEastern States are decreasing the number. Does this indicate that chivalry still exists in the NorthEast? Or perhaps that the fly-over States are more committed to actual equality?

If She Says She's 14 She's a Cop

Proof that the male libido is more powerful than the male brain. If she keeps telling you she's underage then it's most probably a cop on the other end setting you up.

FBI Raids Congressman's Ofice

Last night FBI agents raided the congressional office of Representative William Jefferson. Apparently the raid was based upon a sealed affidavit and the agency refused to allow its agents to be monitored as they did the search. Yeah, nothing we should be concerned about there.

The Difference Between Old Men and Old Women

Old men blackmail women for sex while old women set up homeless guys so they can get millions from collecting on life insurance.

Odds and Ends

1) Grand theft ham.

2) Massuese fraud.

3) Rope across the road + motorcycle = bad neighbors.

4) A gym teacher who took a dollar a day bribe from kids who didn't want to attend class.

5) If you get away from the police by ditching your car they just might check your plates and be waiting for you when you take that cab home.

6) Looks like the US isn't the only country with illegal immigrant and drug problems at its borders.

7) Just because you don't believe in the IRS doesn't mean it doesn't believe in you.

8) 9 attorneys later, the judge suspects that a defendant refusing treatment for his gangrene is doing so to delay his trial.

9) Want to get away with stealing cars? Maybe you should steal them one piece at a time.

10) Steal petrol in New Zealand - stop driving.

11) A South African judge recuses himself because the defense attorney has an ear infection.

12) What happens when they find 40 illegal slot machines in South Africa? They throw them down an old mine.

13) If you win a million dollars on national TV, pay your taxes.

14) Guess what guys? Hoffa's dead. Why are you still hunting for him?

15) It must be nice to be able to run away and hide in Japan if you're going to be prosecuted in South America.

You Can Only Kill Him Once

For the life of me, I don't understand why Maryland is wasting its money trying Muhammed, but it is. And it appears Malvo is cooperating against him.

Islamic Radical Turk Trigger Secularist Backlash

Turkey's national identity is tied to a purposeful decision to create a secular state. So, when a judge bars a woman from taking a job because she wears an Islamic head dress and the judge is killed by a radical Muslim it's the secularists who turn out in force.

Imagine This: It's Hard to Get People to Work at a Supermax

The US's most secure facility is understaffed.

If a Former DA Testifies That a Former Judge told him to Violate the Constitution did it Happen?

Former Alameda County Deputy District Attorney Jack Quatman testified last year that now-deceased Judge Stanley Golde told him to remove Jews from the prospective jury pool because Golde believed they were less likely to issue death verdicts.

Can the Underaged Give Permission for a DNA Sample?

"What you have in this case is a warrantless search of a child's mouth," said Steve Benjamin, an adjunct professor at the University of Richmond School of Law. Police, he said, could easily have obtained a warrant or found another way to secure the sample.

"All they would have had to do was follow the kid until he blew his nose on a tissue and dropped it or dropped a soda can, and they could have the DNA," Benjamin said. "This is stupid, unimaginative and lazy police work that may have jeopardized a very strong case."

Not Manslaughter - Just Violating the Oath of Office

A deputy accused of fatally shooting a teenager during a traffic stop and then planting a knife in the young man's truck to mislead investigators has been found not guilty of involuntary manslaughter and tampering with evidence, but guilty of making false statements and writings and for violation of his oath of office.

10% of All Colombian Cocaine

Multi-national law enforcement agencies have broken up a drug organization they believe to be responsible for 10% of all cocaIne which comes from Colombia..

19 May 2006

Jacquelle, the Ripper?

Was Jack a female?

Too Much Information . . .

Why did we need to know all about the third party's voluntary "sexual slavery"?

The games people play.

Overheard in Court

(During a very late docket)

Lawyer: Objection! The prosecutor is leading the witness.

Judge: Counselor, it's 5:15. At this point I'm going to let anybody lead if it gets us out of here quicker.


(Abusive phone call case: pro se defendant testifying on her own behalf)

Defendant: First of all, they haven't proven that I called anyone and when I called . . .


(Judge starts to comment about how every third law in Virginia takes away operators' licenses)

No, I'm not going to say that. It's not my place to comment on the General Assembly. After all, I serve at their leisure.


(Abusive phone call case: prosecutor questioning complaining witness who filed citizen complaint - no police report to prepare case before trial)

Prosecutor: Mr. Smith tell us about the call on the 15th of April.

Mr. Smith: Well, it all started back in February . . .

Prosecutor: Tell us about the call on April the 15th.

Mr. Smith: Well, Ms. Jones called my house and started telling me about problems my wife had been in and the papers she had to prove them.

Prosecutor: Did she curse you?

Mr. Smith: No

Prosecutor: Mr. Smith, PLEASE tell me that we're not here because she called you and told you something you didn't want to hear about your wife.

Mr. Smith: Well, she hasn't called since then and I called up here to drop the charges but they told me you were the only person who could do that.

Prosecutor: Your Honor, I think that's an excellent idea.


(pretrial hearing - I have just been assigned to Client on a felony charge - the judge is setting the initial bond - I'm not supposed to have anything to do with setting that bond, if I want to argue bond I have to schedule a later bond hearing)

Judge: His bond is set at $5,000. I'm going to change that to $1,000. Madame Pre-Trial Services Officer, do you think he needs pre-trial supervision?

Pre-trial Officer: Sir, I'm not allowed to recommend pretrial services for someone who has a bond. I'd just point out that he has admitted to recent, fairly frequent use of crack cocaine.

Client: But I only smoke crack when it's inside a blunt I'm smoking . . .

Me: Mr. Smith, please wait until we've spoken before talking to the judge (the six lawyers sitting behind me all burst into laughter) . . . Your Honor, considering all the circumstances the thousand dollar bond is appropriate . . .

Judge: "Mr. Lammers, a thousand dollar bond is entirely too low. But I'm not going to go back on my word. However, I am going to order him to go to pre-trial services for drug testing until his trial date and if he fails a single drug test he's back in jail."

17 May 2006

Frustration Thy Name is Batson

Back in law school I remember doing a bunch of research on Batson v. Kentucky for some paper (can't remember for which class). This is a good thing because I have an appellate argument accepted on a Batson issue. For those of you not lawyers a Batson issue is an argument over whether one party in a case used race or gender to exclude someone from the jury.

I remember the law as it applies to Batson challenges but, naturally, I don't remember all the cases. No problem, I've saved every paper I've written since my first college course. So this morning I go into the wilderness depths of my walk in closet and start looking. I find all my college papers, among them "Comparative French and American National Foundations"; "War and Islam"; "The October War"; "Suffi Poetry as Religious Expression"; "The Adversary: Comparative Myths of the Fall"; and even my first published article "Abraham, Father of Faiths: Comparative Translations and Explanations of the Hebrew Testament and the Quran."1 You might be able to guess that my undergrad majors were International Studies and Religion. I also found a bunch of photos from back in the military and even my High School year book. But nothing from law school. At one point I thought I'd hit the jackpot when I opened a box and it had all my books from studying for the bar, but no joy. Anyway, the legal papers I wrote are nowhere to be found - including my copy of the Race and Ethnic Ancestry Law Journal with my case note - it wasn't much of a case note but I wanted to keep my copy.

Then it hits me. A year or so back my landlord flooded my apartment. I threw out all sorts of books and papers because they were destroyed. Most of it was sentimental stuff I had held onto only because I couldn't bring myself to throw it away; I didn't have much use for my Soldier's Guide anymore, I just couldn't bring myself to throw it away until it was waterlogged and weighed about 20 pounds. But I also threw away a bunch of waterlogged papers and books from law school. At the time I figured it was all basically in the same category. It appears I was wrong. Now I have to go reinvent the wheel and figure out all the important Batson cites all over again.

Joy of joys.

1 Okay, it's not really my first published work. In the third grade a poem I wrote (about a lion and piano?) was published as part of a booklet put out by my Elementary School (Deep Springs, Lexington, Kentucky). However, much as I'd like to get a copy of that I suspect it is lost to the ages.

Prifysgol Caerdydd

Hey, anybody out there feel like footing the bill so I can fly to Cardiff (yes, it exists - and not just in Dr. Who) and watch a lecture on criminal law?

A Pork Rind for Your Vote

Over at Joint Strike Weasel, Sal catches part of the Appalachia voting scandal that I missed.

Don't Come Calling . . .

There's been a bit of a fuss because Law.com published an article about how we poor, helpless, incompetent defense lawyers need to be rescued from ourselves by helpful, capable, beneficent, better-than-you lawyers if we are supposed to represent one of our clients in the Big, Bad Supreme Court of the United States. Several blawgs had postings about this: Concurring Opinions, OrinKerr.com, SL&P, Arbitrary & Capricious, and Hoosier Lawyer. However, the best, by far, is My Shingle; Carolyn Elefant blows the article out of the water.

Here's my $.02. If I ever have a case which is accepted for argument by the Supreme Court of the United States the quickest way to eliminate yourself from any participation which I can control will be to contact me. I know that it will probably be in the best interest of my client if I get help. However, we both know that the calls I get after cert is granted aren't about helping me or my client. They're about putting your name on a brief or getting face time in front of the Supreme Court. This is true whether you are biglaw or a "criminal law appellate specialist" out there in your own botique firm. Don't call me; if I want your help I'll call you.

So, what steps do I plan to take when (ever the optimist I) that fateful day comes? Well - as much as I think the Supreme Court would do well with a few more 13 page briefs which cited the main case on point but didn't have a 20 case string cite and made its case succinctly at the expense of missing that one outlying, semi-relevant case from Guam - I'd look for an expert. And there are plenty around. After all, what else have law professors got to do? Grade papers twice a year? ;-) I might not know exactly to whom to talk but I bet I know of some people whom I could contact who would probably be able to point me in the right direction. Get a law professor and two or three students suckered into errrr . . . I mean convinced to work free of charge for truth, justice, and the American way and I bet my 15 page brief could get fleshed out to 50 pages - including that all important, semi-relevant case from Guam.

As well, I'd put some serious thought into contacting the NACDL (btw watch first lady on the media clip). Now, I'm more hesitant to do this for a couple reasons. First, I'm no longer a member. I was for a while a few years back before I realized that I was getting nothing out of it. Well, that's not exactly true. I was getting a well put together magazine every month which, almost invariably, told me how terrible a lawyer I was because I was court appointed rather than a PD. However, I'd probably be happy to rejoin if required. Second, I have no difficulty whatsoever imagining the aforementioned "criminal law appellate specialist" using this as an avenue to try to shoulder out a local-yokel and save him from embarrassing himself because he's obviously going to be badly overmatched. All - of course - in the interest of doing what's best for the client. Of course. Still, the resources of the NACDL are such that I'm fairly certain I'd have to, at the very least, contact the organization and see if I could work with it.

And, no, I won't give up my oral argument time so you can put that you appeared in front of the Supreme Court on your CV. If you're all that worried about my presentation help me out by arranging 4 or 5 murder boards. Or better yet sit around and informally discuss the issues with me a few times (I tend to learn better this way) and still do a couple murder boards. Anyway, let's face it, if we haven't won via the brief we're not going to win during the oral argument. If the Court was seriously interested in having attorneys trying to persuade it during oral arguments it would remain silent the majority of the time and let the attorney be persuasive. Instead we have hot benches and they're all about the Justices, not the attorneys' ability to persuade. All an attorney does with a hot bench is survive and I can survive any courtroom. I may walk out of the courtroom after having been scalped by Scalia but I'll walk out of the courtroom.

Now you've read the Ken Lammers plan for that fateful day when the Supreme Court decides I am worthy of the honor of driving up through the world's worst traffic jam, paying half a month's earnings to stay the night at a hotel with exactly the same stuff in the room as a $50 Red Roof Inn, facing the very real possibility of actually getting mugged (gotta love D.C.), and then feeling the love of a court whose latest addition made his bones as a federal prosecutor. Almost sounds like too much fun. The only question is whether I'll go buy the silly suit that's the "official" uniform of the Court. Probably not; I'm not even sure if we non-solicitor general types are allowed to wear them in court anyway.

Vigilante in Yellow

Push the play button on the bottom bar - not the middle of the picture (it will open another page)

16 May 2006

Useful Idiots

Usefuls idiots. They're everywhere. Every time one side faces overwhelming evidence there's always some person who ought to be in the opposition who isn't. This makes him "useful" as someone that side can point to as the reason that the overwhelming evidence isn't really.

This doesn't mean that the individual is wrong. His particular circumstances may be such that for him the contrarian position is correct. However, the position is harmful to a greater number of people and he does not see that either through willfull ignorance or the inability to comprehend. Thus the appellation "idiot."

Mind you, we've all probably been in a position where we could have been a useful idiot. However, most of us don't have it recorded. I recently ran across one who was.

I was reading King & Noble's article on jury sentencing in Kentucky, Arkansas, and Virginia. Of course, I was concentrating on the parts about Virginia. As anyone who has read this blog for a while knows, I consider the system as it operates in Virginia to place a jury out of bounds for the vast majority of cases because of jury sentencing; in fact it is probably per se malpractice to recommend a jury in 90% of felony cases in Virginia. While the authors bend over backwards trying to be even-handed and make the case in favor of the system the numerous quotes from prosecutors make it clear that in Virginia a jury is much more often a sword in the hands of the prosecutor instead of the shield it is supposed to be for the the citizenry. And then they find someone from the .0000001% of the defense bar who thinks that jury sentencing actually works:
Even in Virginia, one defender reported that juries impose sentences that are more lenient than the guidelines recommendations in some cases.205

"I love jury sentencing because I find it is easier to work with, and I can have more impact on the jury. The jury is more honest, and less influenced than judges, when they are properly prepared. I trust the jury. The guidelines were written the way they were to discourage jury trials. . . . I always demand a jury. Not all defense attorneys would agree with me. They don’t go to trial as much as I do. Q: Why not? A: Because they’re punks. They don’t have enough confidence. . . . I still run across some prosecutors who will say, 'If you don’t take this deal, I'll take this to the jury.' And I give them my standard response, 'Oooh, I’ll have to sleep with my night light on I'm so scared.' I love the jury. I’m not intimidated by it. So many defense attorneys do not do an adequate voir dire; some, to this day, never even ask one question. Not one question. That’s so incredibly stupid. Lazy people don’t go to jury trial.".
Okay, I see four possible reasons to make that claim.

1) Bravado: If you claim this constantly and loudly perhaps the prosecutors will know you are a pain in the rear when they see that you are on the case and offer a little better deal just to get rid of you.

2) The Ability to Pick Clients: If you only do retained cases and you loudly proclaim this you will get people who come to you already dedicated to taking a jury. Fees are therefore larger and you are percieved as someone who will "fight for" his client. You can reject clients who really shouldn't be tasking a jury trial either directly or by overpricing them.

3) Only Handles Very Serious Cases: Imagine a 45 year old defendant charged with murder; he has the option of 35 years under the guidelines, 22 years per the prosecution offer, and a life sentence if found guilty by a jury. Why wouldn't you take that to a jury? All three are basically life sentences. If this is the type of case you face day after day you should be taking juries.

4) Ineptitude: Probably justifies himself with the 10% of clients who have gotten better results than the judge would have given them but forgets about the 50% who are serving years more than they would have without a jury trial.

Look, I think jury trials are a necessity of a just system. It's the reason I am so disturbed by the system as it exists in Virginia. About the only cases wherein I push my clients toward a jury are Virginia Exile cases, because I know they're going to get the mandatory time whether the trial is by a judge or jury, or cases where the punishment by statute is so huge that it's doubtful that jury sentencing will make much of a difference. In others I explain the pros and cons and then let them make the decision. If they cannot make up their mind I schedule a bench trial because they can always assert their right to a jury trial later but once the jury trial is set they aren't going to get out of it unless they plead guilty. Once jury sentencing is explained to them the vast majority do a risk-benefit analysis and realize that the potential sentence by a jury is too great a burden to take a jury.

The overwhelming reality of jury sentencing in Virginia is that it denies most people a realistic opportunity at a jury trial. An individual attorney might be able to put himself within a bubble so that he only schedules jury trials but the majority of us must live outside that bubble. In a fairly typical case Client is charged with distribution (5-40 years): the jury must sentence him to no less than 5 years, the judge doesn't have to give him any active time, and the judge's guidlines call for 7 months incarceration. In a more serious case Client is charged with aggravated malicious wounding (20 years - life): the jury must sentence him to no less than 20 years, the judge doesn't have to give him any active time, and the judge's guidelines call for 7 years in prison. BTW, jurors are forbidden the knowledge of what kind of punishment they will be forced to impose if they convict. Why? Because "beyond a reasonable doubt" could become a much higher burden if the jurors knew they would be required to send someone to prison for 5 years. Assuming the case is close (why else take a jury?), a jury trial carries a disproportional risk. It is definitely not the protection it was meant to be.

I'm sure someone will write to tell me how wonderful jury sentencing is. In Virginia this usually takes the form of a statement that jury sentencing is a tradition woven into the fabric of our system expressing the will of the people.

Poppycock. Rubbish. Malarkey. Bunk.

Jury sentencing as it is currently set up in Virginia is a historical abberation. Traditional sentencing was done without the jury being told of the defendant's history. The prosecution didn't get the advantage of introducing the defendant's 16 page criminal record. Traditionally a jury decided its sentence purely on the basis of the act itself. Additionally, prior to the current system the jury's sentence was strongly mitigated by parole. This no longer exists except as it is reflected in the sentencing guidelines - which the jury is forbidden. The only way to get that parole time back is by judge sentencing, which means a bench trial. Judges, in theory, can reduce the jury sentence to the appropriate level; they don't. Going back to the old system would be painful (I know I don't want to mess with figuring out potential sentences considering parole), but if we want to be historical we must. Or we could just go for a system that works and opt for judicial sentencing. Figure the odds . . .

15 May 2006

Why Do People Represent Themselves in Court?

From Tom via CrimProf Blog, I came upon this article which talks about the effectiveness of pro se felony defendants. It discusses a study showing that pro se defendants were as likely to get acquittals and more likely to get convictions on lesser offenses. They also go to trial more often.

Admittedly, I'm suspicious. I see a pro se win a traffic case every so often (maybe one out of every couple hundred). I also have seen the very occasional pro se win in a misdemeanor and I stress very occasional. I've never seen a pro se win a felony case. Never.

The time period of the study struck me as strange: even years from 1990 to 1998. Why such an unusual limitation on the information studied? It's not exactly the same as limiting the study to every third lunar month on the Jewish Calendar, but there needs to be some sort of explanation for parameters like that. As well, why an eight year (four year?) limit to the data used?

There are all sorts of potential points to pick at from what the news article reports. For instance, I really don't give the part about the pro se defendants being more likely to be convicted of a lesser included offense much weight. All that probably means is that if represented by a defense attorney the attorney would have been able to work a plea out which would have resulted in a lesser conviction without going to trial.

Still, it's not really fair to criticize when I haven't read the entire law article. I've seen enough erroneous or incomplete news articles to know better than to believe the article is explaining it all correctly. I looked on SSRN-LSN and North Carolina's Law Review site, but there was no sign of Professor Hashimoto's article. Without the article in hand, there's no way I can know if it addresses the issues I might have. Therefore, I thought I'd instead address the issue of why people choose to represent themselves.

According to the news article we lawyers think that those who try to represent themselves are "either mentally ill or stupid." I'd agree with the first part of that. I suspect that at the very least a large plurality of the people I've seen try to represent themselves on serious crimes have mental issues - probably not enough to be found legally insane or incompetent, but enough that we should be concerned about their perceptions and ideations of what can be accomplished in court. However, I don't know that I agree with the second. Most of the people whom I have seen try to represent themselves are of at least average intelligence. They are doing a dumb thing but it most likely comes from arrogance, stubbornness, or a desire to be a martyr - these are the things I'm going to address.

Arrogance - This is the guy who knows he's as smart or smarter than the attorney the court tried to give him and is better off representing himself. Let's assume he is - some of my clients have definitely been very bright individuals. Additionally, he will always knows what went on better than his attorney and he can look up all the legal matters involved. In a purely rhetorical debate he could probably crush the prosecutor. The problem is, he isn't going to get that debate.

This person is almost invariably tripped up by the training and experience he does not have. He finds the perfect case but doesn't know to sheperdize it and therefore doesn't know it was over ruled 12 years later. He doesn't know the Rules of the Supreme Court and therefore doesn't file his motions pretrial and has his case crippled. He doesn't know the rules of evidence and great swathes of his carefully prepared argument are excluded. Mind you, if this guy had been practicing law for six months he would probably have enough real world experience to do a good job of representing himself. However, he will be gaining his experience during the trial.

I watched a case along these lines a couple years back. Virginia's the only State in the US which illegalizes radar detectors. A pro se defendant demanded a jury on his charge of having a radar detector. His defense? The federal government had pre-empted Virginia's ability to regulate electronic waves and therefore only the federal government had the right to declare whether radar detectors are legal. At least, that's what I was able to surmise. He didn't file the motion pre-trial. He didn't argue the constitutional issue at least three days prior to the trial. Therefore, the issue was foreclosed; he tried to argue it but got shut down. In the end, despite an interesting legal issue, his case came down to only one question: did he have a radar detector? He did. Guilty.

stubbornness - This is the guy who is only going to see things his way. He thinks he can get past the fact that he's on videotape shoplifting. He thinks the law is what he believes it to be. He may even want to get convicted (the guys seeking death sentences). This guy gets slaughtered in the courtroom. The prosecutor buries him under the evidence and the legal argument he tries to make is shredded.

Quite often, the judges will not let these guys walk away from their lawyers. I can remember the day one of my clients tried to go pro se, telling the judge that I refused to do my job because I wouldn't argue that the law illegalizing marijuana is unconstitutional. The judge didn't relieve me and Client got 30 days suspended; I'm absolutely certain he still thinks that it's unconstitutional to make marijuana illegal.

Martyrdom - These are the guys who are determined to go down fighting. Mostly these are "true believers": drug activists, tax protestors, sovereign citizens, racial activists, etc. They usually know the (wrong-headed/unconstitutional/oppressors') law is against them, but they've got a point to make and, by gum, they're going to make it!

These people really, really want their day in court. I recall one day when I saw a prosecutor, at the behest of "standby" counsel, dropping all charges against one individual. The man was brought before the judge and told that his charges were dropped and became instantly and extremely upset. He started ranting about how the defense attorney wasn't allowed to act on his behalf and how he had specifically said that he didn't want an attorney when he was first brought before the court and therefore the charges should go to trial. He was entitled to his day in court. The judge tried to explain a few times that it was the prosecutor who decided whether to go forward with a charge - not him - but eventually gave up and had the ex-defendant removed.

Mind you, most of the time a pro se defendant doesn't fit neatly inside one of those categories. He usually cuts across two and sometimes all three.

14 May 2006

Meanwhile, in the City of Townsville

A US Navy chief petty officer, a US Navy petty officer second class, and an Iranian-born Canadian national try to smuggle drugs into Australia. They got past Blossom, Bubbles, and Buttercup. However, the feds tagged and bagged 'em.

Japanese Crime: Conspiracy

The Big Debate: Will Japan's new conspiracy crimes over reach?

Of course they will. Conspiracy is just too easy to allege and nearly impossible to disprove. Language added to the bill stating that "legitimate activities of labor unions and other organizations will not be prevented" doesn't accomplish anything because those who would attack a union would have a very limited view of the "legitimate activities" of a union.

And if you think I'm being a little paranoid just check out how the US feds use conspiracy, or how it's added as a separate crime with no separate act in Virginia, or go read some of the history of the abuse of RICO. Or for paranoia purely related to Japan read this article.

Japanese Crime: Neo-Geriatrics

There is rising concern that when people retire they will get bored and turn to crime:
Experts are of the opinion that as the number of retired people rises in Japan so will geriatric crime. According to Takeshi Kitashiba, a former psychologist with the Metropolitan Police Department in Tokyo, "2006 is the first year of the Neo-Geriatric", as many baby boomers retire this year. Talking to the Japanese weekly Shukan Gendai, he commented that "Neo-Geriatrics are those over 65 who are still fit, healthy and want to get more out of their lives. Without work, they'll be filled with anxiety and there's a likelihood they may turn to crime. Make no mistake, there will be a significant rise in crimes committed by Neo-Geriatrics."
It brings to mind roving gangs of grandpops running around terrorizing people and robbing banks.

Japanese Crime: Interrogations

Apparently they have started taping parts of interrogations in Japan, but not the entire interrogation. The Bar is trying to make interrogations be taped in their entirety.
"Choosing to record only the 'good parts' will make people wonder why this part was recorded and other parts were not recorded," said lawyer Toshio Tanaka, who has formed a group at the bar federation to realize full recording of interrogations.

"Eventually, all interrogations would have to be recorded from the viewpoint of warranting voluntary confessions and the credibility of confessions," he said.
I'd insert some sort of snide comment here except we can't get a requirement that interrogations be taped in Virginia either so I don't think I'm in a position to say anything.

11 May 2006

A Few Words About Chad Dotson

Libertas, has been speaking quite a bit about prosecutor Chad Dotson (also see Comonwealth Conservative) lately; he's even been spreading his comments to other blogs. Libertas makes this request:

Chad should explain his role in the town of Appalachia and his relationship with those now implicated in this growing scandal.

Why wasn't it busted up before the election charges even came to light?

Why did it take a special prosecutor to do what the local Commonwealth's Attorney wouldn't?

If he can't find a way to prosecute anyone in Wise County, how can he preside over their trials?

The problem is, I don't think Dotson can answer these questions. As I read the ethics rules, Dotson is forbidden to discuss the case under Rule 3.6: "A lawyer . . . associated with the investigation or the prosecution . . . of a criminal matter that may be tried by a jury shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication that the lawyer knows, or should know, will have a substantial likelihood of interfering with the fairness of the trial by a jury." Most everyone I know gives that a fairly broad interpretation so that they remain silent if (1) an indictment has been served and (2) they have had something to do with the case. Furthermore, it is just bad form to comment on a case when another attorney has stepped in to replace you. So, I will do my best - with admittedly limited knowledge of Wise - to answer the questions posed.

This is Wise County. One city, six towns, and rural areas. This means various police departments and the sheriff's department to deal with. There's one Commonwealth Attorney's office for all of that based in the Town of Wise. As best I can tell that's also where the only courthouse is located.

The local paper (Coalfield.com) has published a series of articles which describe what has happened in this investigation.

28 July 2005 - Wise County Commonwealth Attorney Chad Dotson on Wednesday requested that a special grand jury be impaneled by Circuit Court Judge Tammy McElyea to investigate irregularities surrounding last year's town council elections in Appalachia.
. . .
"The initial focus of the special grand jury will be the election, but the investigation will be open-ended. Wherever the election takes us, we will follow. There are no statutes of limitations on any felonies, and most of these allegations would result in felony charges."
. . .
"At the end of the process, the special grand jury will report back to me on whether they determined there is sufficient probable cause to prosecute in any number of areas," he said.

I'm not sure how the rest of ya'll read that. My suspicious, defense attorney mind reads that as saying: "We've got a hook to start fishing with. We know there's more to this and we're going to use it to pry the other stuff out into the open which we'd never be able to do though a normal investigation."

Dotson got the grand jury set up for the 3d and 4th of October. Then Dotson inquired of the State Bar whether he had a conflict of interest because the Town of Appalachia pays him to prosecute misdemeanor cases charged under the town's ordinances. On 09 September 2005 the Bar ruled that he could not prosecute; it also forbade other members of his office from taking up the case.

"I'm extremely disappointed I won't be able to continue doing this, because I've put a lot of work into it," Dotson said. "But I want to make sure this is done 100 percent above board, because the people in Appalachia deserve some answers."

The news article hints that something might have been going on behind the scenes and I'd suspect something myself - if for no other reason than it's hard to separate a prosecutor from a case he's put this much work into and there's clearly already a lot of chum in the water here. Maybe someone thought that they could pressure him into dropping the charges if he was conflicted out and wouldn't get the political benefit of the convictions. Maybe it was just that someone (the judge or one of his associate prosecutors) realized that the people being investigated paid part of the Commonwealth Attorney's salary, no matter how small. In any event, Dotson didn't just step down; he asked the judge to find someone without a conflict to continue the investigation.

The court appointed the man who was the Commonwealth Attorney before Dotson to continue the investigation. In my experience, the way this usually works is that the prosecutor who is conflicted out usually asks a particular person to replace him. However, the judge could have made the choice entirely on his own. The news articles never specify exactly how the switch-over took place.

On 30 January 2006 State Troopers raided the houses and government offices of various Appalachian officials and found evidence of other inappropriate and illegal activities. Thereafter, the judge signed an order allowing the special prosecutors to expand the scope of their investigation. And, let's be honest, this was most likely the goal from the beginning. Remember, the State Troopers had already been investigating the election fraud and, in the early stages of all this Dotson wanted to have a special grand jury for an "open-ended" investigation.

In March 2006 a 300 count, 269 page indictment of 14 people issued for election fraud and police corruption. The 14 defendants pled not guilty - 3 to over 100 charges apiece - and the trial is scheduled for 03 October 2006.

And now comes the matter which raises Libertas' interest: as part of the election fraud investigation the special grand jury has exposed a gambling ring in Appalachia which was apparently very successful.

After a series of raids Saturday morning revealed evidence of widespread wagering in establishments run out of vacant Main Street storefronts, authorities spent Sunday preparing forfeiture papers intended to capture the enterprises' suspected illegal assets.
. . .
"If somebody said we were going to seize half a million dollars, I would not have thought that," McAfee said.
. . .

"Everybody knows that gambling has gone on in Appalachia for a long time," said Rick Bowman, a former member of town council. "It's become a way of life, just like political corruption has been."

Actually, it looks like the two were pretty much intertwined.

So what are the answers to Libertas' questions?

What is Chad's relationship with those implicated?

There are two ties. First, his office receives funds allocated from the town they ran in exchange for the prosecution of violations of the town's ordinances (not terribly unusual). Second, he took part in the investigation which is bringing them down.

Why wasn't it busted up before the election charges even came to light?

Well, probably because of the lack of evidence. The special prosecutor, who was the person in Dotson's office before Dotson, seems shocked at the scope of this gambling ring. Why should Dotson have known any different?

This doesn't necessarily means Dotson had no suspicions. Find a prosecuting attorney in a candid moment and ask him if he doesn't suspect some of the power players in his county are up to some shady stuff. I guarantee none of them would admit it here, but they all do. Then ask him if his chances of finding the truth would be improved if the local police force was corrupt. Remember, this is all an outgrowth of a State police investigation.

Why did it take a special prosecutor to do what the local Commonwealth's Attorney wouldn't?

It didn't. The investigation would have gotten there anyway. Let's be crass for a moment and assume Dotson wouldn't pursue this for the right reasons - that he'd only act to further his self interest. Wouldn't this prosecution be a jewel in Dotson's crown? He's making local news for cracking down on local drug rings, but the story out of Wise which is making it into the Roanoke and Richmond papers is the corruption scandal which has produced these gambling seizures. Assuming that Dotson is a fairly typical commonwealth attorney and has dreams of being attorney general some day, does anyone truly think the fact that the town paid him to prosecute ordinance violations would have stopped him from pushing this investigation?

If he can't find a way to prosecute anyone in Wise County, how can he preside over their trials?

He can prosecute people in Wise County. Personally, I think the Bar was a little too cautious here when it told him he couldn't go forward with this case. Still, I guess it does avoid the appearance of impropriety. If Dotson had been allowed to stay on this case and decided only to press forward with 250 charges instead of the 300 the special prosecutor went forward on would we be discussing today whether Dotson had failed in his duty because of his conflicting loyalties? Possibly.

---------- ---------- ----------

All-in-all, the fact that Dotson's office received funds to prosecute ordinance violations for Appalachia isn't exactly the most damning thing I've ever heard. Commonwealth attorney offices often have their budgets augmented by the localities and I suspect this was probably in place before Dotson took office. Dotson's connection with the officials of Appalachia appears tenuous at best and if anybody thought they were buying protection by paying Dotson to prosecute ordinance violations they were obviously sorely mistaken.

10 May 2006

EU Trying to Centralize Law Enforcement

The European Union's executive agency is pushing to shift power over criminal policy to the EU from national governments, to strengthen cooperation against terrorism and organized crime, a spokesman said.

It looks as though the EU might reach centralization far quicker than we in the States did.

Taser Death - No Prosecution

Two San Bernardino County Sheriff's sergeants will not face criminal charges for the death of a combative suspect who was repeatedly zapped with a stun gun., Leroy Pierson, 55, died nearly a year ago after deputies shocked him four times with a Taser at the West Valley Detention Center in Rancho Cucamonga. The final electric shock was applied for a full 47 seconds. Pierson was handcuffed and hooded with his legs restrained in a jail cell when he received his fatal injuries.

Problems in Getting Forensic Rape Evidence in Britain

Experts are concerned with, among other things, DNA contamination.

Retried German Cannibal

A German man convicted of killing someone in order to eat him was originally convicted of manslaughter (he claimed the act was at the other guy's behest). However, after a German appellate court decided the previous conviction was not sufficient he was retried and convicted of murder.

Maori, New Zealand, & Crime

"[A]lthough they represent 13% of the population over 14 years of age, Maori accounted for 40% of all arrests:

41% of all prosecuted cases
44% of all people convicted; and
50% of the prison population.

The Lesson Here is Not to Leave Russia

A Russian mobster arrested in Dubai for deportation to Spain.

Maryland Officer Gets Second Charge

A police officer accused of raping a woman at a police station has been indicted on a rape charge involving another woman, the state's attorney's office said.

Cutting Crime in Jamaica

Buoyed by what he described as a "serious dent" in crime since publishing the identities of Montego Bay's nine most wanted men, Acting Commissioner of Police in charge of Area One, Keith "Trinity" Gardener, is planning to publish another list.

No 1st Amendment in Malawi

On 8 May 2006, the editor and two reporters of "The Chronicle" weekly newspaper were arrested and charged with criminal libel, following an article published in the newspaper that alleged that the Attorney General, Ralph Kasambara, was involved in the sale of a stolen laptop computer.

09 May 2006

Terrorism in Virginia

Here's a manual about how Virginia's employees are to be alert for terrorism. Its on point until pages 8-9 where it starts talking about how to protect yourself against computer viruses, identity theft, and regular street crime. Each of these is a valid concern but associating them with terrorist attacks doesn't make a whole lot of sense.

Ineffective Assistance of Court Appointed Counsel?

Tom Spencer, in reference to this post, raises the following question:
"Indigent defendant is accused of a serious felony that is less than murder. Moreover, the case looks sufficiently complicated that any jury trial will take more than three days. Prosecutor makes an offer for a plea bargain that clearly requires thought. Court appointed council advises accepting the offer, but defendant insists on some time to consider the offer. While supposedly considering the offer defendant writes a letter to the judge complaining that since court appointed council's compensation for the trial will clearly be inadequate, council has a conflict that keeps the defendant from trusting council's advice. Therefore, he has been denied effective assistance of council and the judge should do something."

"I am curious to see if anyone reading this thinks that the defendant has a valid argument or one that a court will buy."
Will the court buy this argument? Not the Virginia courts. Per Webb v. Commonwealth there has to be a demonstration of actual prejudice. In that case an appointed indigent defender had worked 30 hours ($2,700 worth of work) more than the maximum number of hours he was going to get paid for when he filed a pretrial motion for dismissal because
(1) the statutory cap on attorneys' fees contained in Code sec. 19.2-163 is unconstitutional,

(2) the compensation allowable under Code sec 19.2-163 is inadequate and operated to deny Webb his right to conflict-free and effective assistance of counsel, and

(3) the statutory compensation scheme causes a conflict of interest because it creates a financial disincentive for a lawyer to effectively represent his or her client.
The appellate court rejects all those arguments. Basically, its reasoning is that there must be proof of ineffective assistance and the attorney in this case was not at all ineffective. He may have put thousands upon thousands of dollars of free work into the case but he didn't abandon his client. You just have to read the case to get the full impact. BTW - The extremely capable defense attorney in that case has joined the ranks of attorneys who refuse to take court appointments.

Does the defendant have a valid argument? The claim that he cannot trust the defense attorney's advice is not valid. It assumes bad faith and unethical behavior on the part of the defense attorney. I spend much of my time interacting with people who make their living doing indigent defense and we talk about our trials. I've never heard, and do not suspect, that any of them tell their clients to plead guilty because of the loss they will incur if the client chooses to go to trial.

However, there is a stronger argument which the defendant could put forward. This argument would be that the defendant feels that he cannot exercise his right to plead not guilty because he believes the low caps will require his attorney to have too great a caseload to be able to give his case adequate attention. Furthermore, the defendant feels even more strongly that he cannot exercise his right to a jury trial because the caseload the caps require the attorney to carry will not allow him devote time adequate to prep and try a multi-day trial.

This is a more valid concern. Fees for a felony in Virginia cap at $428 for a felony which maxes at less than 20 years and $1,186 if the punishment maxes at between 21 years and life (if there is a preliminary hearing the attorney will also get $112 for that); the hourly rate paid is $90 per hour. Let's assume Mr. Smith is charged with felon in possession of a firearm (mandatory 5 years) and kept at the regional jail. Defendant proclaims his innocence and is going to fight the charge to the bitter end and take a jury trial. This means the defense attorney's fees will be capped at $540 (assuming a preliminary hearing). This is 6 hours of work. Assuming that the regional jail is a hour from the lawyer's office (which they all seem to be) two trips to the jail, each with a hour visit (not atypical if prepping for a jury trial), complete the hours for which the defense attorney is getting paid. Anything beyond that - witness interviews, visiting the scene, discovery, meeting with the prosecutor, other jail visits, legal research, filing motions, arguing motions, the trial itself, etc. - is work done without pay.

Meanwhile, the defense attorney's bills continue to come in. He's got to pay rent, phones, secretary, and everything else (not to mention his personal bills). His creditors aren't going to waive their fees because he's required to work without pay. So the court appointed attorney has to take other cases while he is defending Mr. Smith. He continues to churn business. He may not have to make up for every hour he spends on Mr. Smith's case but he does have to make up enough to keep his office open (note that I am not even talking about trying to make a profit). To be fair, it's not entirely about the defense attorney's existence. If his office goes down the drain he's not going to be able to represent anyone so he has to keep churning in order to give anyone representation.

Of course, the problem here is in measuring how much give is caused by the low indigent fee caps. If Mr. Smith is visited 4 times by his attorney while awaiting trial, has he been shorted a 5th or 6th visit? Did the defense attorney do too much triage when deciding what issues to argue in pretrial motions? Did the defense attorney spend 3 hours prepping for the jury trial when he might have spent 6? Or, perhaps did the defense attorney give Mr. Smith's case the full attention it deserves and shift the burden of Mr. Smith's case by spending less time on a myriad of other, "minor" cases because those cases had clients in lesser jeopardy than Mr. Smith?

Of course, every attorney must make decisions as to how much time to spend on each case. No one has the luxury of only having one case to which they can devote all of their time. This makes it almost impossible to determine if actual error exists in a particular case. However, it does point to a system wide error and Mr. Smith has a valid concern when he raises it.

08 May 2006

Gung Ho for Contempt

In the latest issue of Engaged, Judge Michael Warren offers an argument the the contempt power should be used more often by judges: Contempt of Court & Broken Windows: Why Ignoring Contempt of Court Severely Undermines Justice, the Rule of Law, and Republican Selfgovernment.
"The power of contempt is the means by which the court enforces its fundamental authority.
. . .
[T]he failure to pursue blatant perjury and clear disobedience of court orders rapidly leads to a wholesale disrespect for the law."
I'm with the judge for most of that. The contempt power is the judge's strongest enforcement weapon in most criminal cases because they are relatively minor. However, in criminal matters it's not the only one because any defendant who screams obscenities at the judge knows he will get a harsher sentence. The 6 month contempt power pales in comparison when a defendant is facing three charges which could net him a total of 60 years (in Virginia that would be three grand larcenies: theft of items worth $200). However, that's really just a minor quibble because the increased sentence would be a de facto contempt multiplier.

However, I must disagree with Judge Warren in his desire to use the contempt power to punish perjury. Perjury is universally an accepted specific crime (see Va. Code sec. 18.2-434, MCL 750.423, 18 USC 1623 etc.). As such, it is beyond the court's perview to accuse and punish someone of this activity. Certainly, it is within the power of the judge to report believed perjury to the prosecutor and even to suggest prosecution. However, it is not the judge's role to make the decision to prosecute these matters.
The power of contempt is the means by which the court enforces its fundamental authority. Courts have no armies to command and no taxes to raise and spend. In a very fundamental sense, the judicial power is the contempt power; and the failure to exercise it becomes a failure of the judiciary.
I agree with this statement as far as it goes. A court clearly needs the power to ensure that its procedures are followed and that its orders are obeyed. However, as demonstrated above, I suspect that Judge Warren's view of the "fundamental authority" of the court differs from mine and I think his next section indicates this.
C. Contempt of Court is Critical to Maintaining our
Republican Form of Self-Government

Another essential, but often overlooked, vital characteristic of the contempt power is the maintaining the republican form of self-government. In America, the people are sovereign. The people have delegated their authority to the three branches of government.
. . .
Hence, the failure to obey the duly executed orders and judgments of the courts, or acts or omissions that impair the orderly administration of justice in those courts, is a direct affront to the republican government.
. . .
[quoting a Colorado case] "It was said in argument by counsel for respondents 'that by the common law every judge was regarded as the direct representative of the sovereign, and upon this fiction the power to punish for contempt was based.' With us the people have been substituted for the crown. The courts are created by the people, and are dependent upon the popular will for a continuation of the powers granted. They are the people’s courts, and contemptuous conduct toward the judges in the discharge of their official duties tending to defeat the administration of justice, is more than an offense against the person of the judge; it is an offense against the people’s court, the dignity of which the judge should protect, however willing he may be to forego the private injury."

Put another way, the failure to invoke the power of contempt when appropriate not only undermines the administration of justice and the rule of law, it strikes at the heart of our republican form of government.
This seems to assume that a US judge's contempt power is of the same nature as a judge under the British common law. It is not. A monarch gifts these powers to his judges as a means to enforce his will and expand his power. They are freely given and the monarch would expect them to be used liberally as a means of implementing his reign. As members of a democratic republic, we begrudge this power to the members of the bench. It is a necessity given out of a recognition of the realities of the world. As such, we don't expect it to be given wide application. We expect it to be used narrowly and not at all when our legislators have clearly vested a power of prosecution in the executive branch - as they have in perjury charges.

Anyway, check it out. The article is thought provoking even if you don't agree with it in its entirety.

07 May 2006

The Popularity Penalty

Well, Chad Dotson's gotten big enough to warrant a hit piece.

Yeah, but I got there first. Mine came in February. 'Course, nobody called for me to voted out of office . . .

Yale's Lookin' fer Fightin' Words

Got this in email today and thought I'd pass it on. Unfortunately, as submerged as I am in the minutiae of Virginia law I don't know if I'm prepared to argue an issue big and contentious enough for the Yale Law Journal (somehow I don't think they're interested in Virginia's speedy trial statute). Maybe some of ya'll will be better prepared for such an argument:

The [Yale Law] Journal seeks to publish two Articles engaged in a dialogue on a single compelling legal topic. Selected Articles will be published in the same issue in the spring of 2007.

We encourage scholars to submit pieces in development rather than completed pieces ready for submission and publication so that the pieces that will evolve in response to each other. Interested authors should seek out a colleague in their field with a differing viewpoint who will join them in this project.

There is no subject matter limitation for submissions, but the topic should be both contentious and suitable to thorough and engaging discussion.

Each submission should include a partially developed paper of at least 5000 words and the author's curriculum vitae. The interlocutor should include a prospectus of at least 1200 words, as well as a curriculum vitae. Please send proposals via e-mail in MS Word format to the Features & Symposium Committee at features@yalelawjournal.org. The subject line should read: Debate Proposal: [Title]. All submissions must be received by August 1, 2006, and the Journal will respond by August 15.

Hmmm . . . Isn't Yale one of them there North-Eastern Yankee schools? Probably even liberal. Even if I could get something published it would probably be grounds for disbarment in Virginia.

Heck, I'm not sure this here Southern boy knows enough three dollar words to write something for Yale. And there's no way I could get back into the habit of finding a citation for every third word. Not to mention the heart attack I'd give any law school editor who looked at my citations (I haven't even picked up my Blue Book for at least five years). So, I leave it to you, my intrepid readers, go forth and submit thy ideas to that shiny Law School upon the mount. Honestly, do it - it would be so cool to see the first footnote say
* Authors: Sam Schmedlap and Bobby Bilal, graduates of Podunk School of Law, co-practioners in the area of traffic law based in the State of North Dakota. Sam and Bobby wish to thank CrimLaw Blog for notice of this call for publication and encouragement in our submission.
Good luck everyone.

06 May 2006


Barbaro remains undefeated, running away from the best horses in the world to win the Derby. Bluegrass Cat placed and Steppenwolfer showed.

And Now for a Little Fun

Here's a page with a bunch of special effects videos from a school which (I believe) teaches computer graphics. It's a fun way to kill 30 minutes or so. Personally, I think the two best are NASA Seals and B-17.

New Moot Court at W&L

This is the current moot court in Washington & Lee School of Law. W&L had the misfortune of building their law building in the 70's and the entire place was built in the horrendous architectural fads of the time. The fact that it was built across a ravine from all the other academic buildings on campus and has trees completely encircling the entire building keep it from sticking out like a sore thumb on a campus filled with columns and traditional buildings. However, the inside was pretty poorly designed as well. Since I graduated they've put much more pleasant, smaller, technologically equipped classrooms in. It looks like the next step will be to replace the courtroom. The best thing which can be said of the old layout is that it is unusual. I really, really hate the wooden patterns on the sides and behind the bench. I don't know if it's just me, but they screw with my eyes something terrible.

The planned new courtroom looks much better:

I fear that this might come to show its age as well. Light woods and unimpressive but highly workable courtrooms are trendy now. One can only hope that someday we will start building courtrooms that are actually somewhat impressive again. Maybe a moot court in a law school should use a darker wood? Maybe make it look a little traditional - maybe even a little imposing?

Of course, nobody asked me (and since I don't give gazillions to the school they probably won't). I'm just sayin' . . .

05 May 2006

Officer Down

Officer Gary Buro of the Chesterfield County Police Department was killed yesterday when he and Officer Joseph Diman responded to a domestic call and a man started shooting at them.

Despite being shot 5 times, Officer Joseph Diman returned fire, killing the gunman.

Reports: Times-Dispatch, Channel 12, Officer Down: Gary Buro

04 May 2006

New Zealand Crime

1) "In March, near Papamoa, New Zealand, police stopped a 32-year-old man driving about 75 mph, with no license and also no arms."

2) "The application for interim suppression of the name and identity of the man charged with murdering Hawke's Bay farmer Jack Nicholas was turned down yesterday by one of New Zealand's longest-serving judges."

3) "Prison Fellowship New Zealand has been talking with The Maxim Institute, churches, The Drug Foundation, The Council For Civil Liberties and Victim Support. It says the groups agree there needs to be other options to imprisonment and are establishing a National Coalition for Prison Reform."

4) "This is a major victory for victims. This inquiry will not be about removing rights to a fair trial - the Government is already doing more than enough in that regard. This is about healing the trauma that victims of crime suffer."

5) "Attempts by Fiji's military to court martial former acting land force commander Colonel Jone Baledrokadroka appear to have suffered another blow.

Deputy Solicitor General Savenaca Banuve told Pacific Magazine today that Fiji does not have an extradition treaty with New Zealand to bring back Col Baledrokadroka, who is now living in New Zealand.

Crime in Australia

1) "The the Bandido Nation has 12 chapters in Australia and they were represented by national president Jason Addington and the local sergeant-at-arms, Ray "Chopper" Johnson – bizarrely a former NSW policeman. Is this gang well connected or what?"

2) "Work from anywhere, earn $4000 a month for just six hours a week, no experience required. Sound too good to be true? It probably is, and it could probably land you in jail. An email circulating last week appearing to be from Seek.com.au is yet another money laundering phishing scam."

3) "Homicide detectives have travelled to Portland in western Victoria on the 15th anniversary of a double murder in the hope of finding more clues."

4) "More than two million Australians have taken illegal amphetamine-based drugs. And Australians are the biggest users of ecstasy in the world, per head of population."

5) "Alice Springs has long been a popular tourist site in Australia but now the gateway to Ayers Rock is also the country's crime capital."

03 May 2006

Police Say Men Used Dog in Robbery

Investigators said it was the first time they were aware of a dog being used as a weapon in a robbery.

America, you lost. ... I won!

A last gasp by Moussaoui before he fades into the obscurity he so richly deserves - locked in a super-max in the middle of nowhere with no one to listen to his delusions and denied the martyrdom for which he was so obviously striving.

Sentence: Life in Prison.

Murder on Sesame Street

The only truly fictional thing in this entire sordid scenario is the mythical model penal code. At least it's a myth in Virginia.

Of course, no matter what Bert and Ernie say their motivation was we know they were really put up to it by Don Elmo.

02 May 2006

You Have to Let Me Prove Another Guy Did it

Justice Alito issued his first opinion for the federal supreme court this week in a 9-0 decision: Holmes v. South Carolina. In it he decides that a trial court cannot exclude evidence that an individual other than the accused may have committed a crime because the trial judge finds the government's evidence- if believed - to be overwhelming (S.C. had a rule which required this). The opinion seems to have been written fairly cautiously with care taken to make sure every point was well supported from prior case law. It's also worth noting that the decision did not stray into the emotion - which often seems to be the unstated, underlying theme of any number of decisions in cases wherein horrible things have happened. Instead, it stayed on target and established a legal point which can be broadly and equitably applied. If this opinion proves to be typical, I think that Orin is correct that Alito will be more of a traditional Harlan II type conservative who justifies things through a strong reliance upon and adherence to precedent. Still, it's too early to really know. Check back with me in 5 years and see what I think of his crimlaw jurisprudence.

Here's what others have said about this opinion:

OrinKerr.com: "My speculation is that Roberts and Alito will end up harkening back to an older kind of judicial conservatism — a conservatism more like Justice Harlan or Justice Frankfurter than Scalia or Bork."

ACS Blog: "Though Holmes won this round, it seems unlikely that the removal of the State v Gay evidentiary standard will ultimately matter much for his case. South Carolina didn't address the proper procedural questions in excluding Holmes' third-party evidence, but it probably can on remand. If it didn't previously characterize that evidence as "speculative or remote," in other words, we can be sure that it will do so now."

Concurring Opinions: "More interesting to me, though, is what was missing from the decision. Alito did not note that this was a death penalty case. His opinion stated that Holmes received a death sentence after his first trial, and that this trial and sentence were reversed by a state court. But nowhere in the opinion did he say that this new appeal was also from a death sentence. Why is that? Perhaps it was an oversight. Or maybe Alito thought the underlying sentence was an unnecessary fact. If so, why did Alito note Holmes' capital sentence after his first trial? Perhaps he didn't want to highlight this as a death case. He might have felt uncomfortable reversing a death sentence in a heinous killing. Or maybe he didn't want the case framed as a "death decision" - with all the attendant baggage - and instead cast it as a plain old evidence ruling."

TalkLeft: "The holding is such a no-brainer that it tells us little about Justice Alito or the Chief Justice, although this is the kind of case that might have provoked a lone dissent from the extraordinarily pro-prosecution Chief Justice Rehnquist."

LegalTimes.com: "It was a case in which actual innocence was claimed, coming from a state whose handling of capital cases has troubled the Court in the past. One sign South Carolina was in trouble came during oral argument in February, when conservative Justice Clarence Thomas asked a question — almost unheard of for him — and it was hostile to the state."

---------- ---------- ----------

As a side note I would like point out that great minds think alike. I was judging a moot court competition at University of Richmond School of Law based upon this case and I asked every student I graded whether the rule in question wouldn't be ridiculous if applied to exclude the prosecution's evidence if the defense could put together evidence which, if strongly believed, would mean the prosecution's evidence wasn't true. Then I read the decision and lo and behold:
The rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of a defendant's guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, the petitioner proffered evidence that, if believed, squarely proved that White, not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of the petitioner's guilt.
See, I told ya'll I'd be a great Supreme Court Justice.

Conversations I'm Sure Some of My Clients Have

Inmate 162534 walks back into the pod and starts talking with inmate 435261:

435261: Where you been?

162534: I was messing with my lawyer.

435261: :-)

162534: He had a new offer for a plea agreement which would make 4 of my 5 felonies go away and 2 of my 3 misdemeanors. I'd have to serve 6 months in jail on the felony and 6 months on the misdemeanor. I told him I wouldn't agree to anything more than 6 months total.

435261: You have two bank robberies in your past. You'll never get that short a sentence.

162534: Yeah, I know, but it was fun watching his face turn red and then pretending that I didn't understand when he explained that the deal is the best I'm going to get with my record. Then I started complaining that I was going to have suspended time and probation.

435261: But everybody gets suspended time and probation.

162534: Yep, and you should have seen his eyes bug out. He spent 15 minutes explaining to me that everybody gets suspended time. I finally let the guy off the hook and said I understood the third time he explained it. Then I asked him if he could get the judge to run the two six month sentences concurrent.

435261: *chuckle*

162534: He started trying to explain how the deal as it stands is the least time I could get, but I cut him off and said that other people in here are getting deals on 14 or 15 felonies which are better than the deal he got for me.

435261: Really? Who?

162534: Nobody, it was just fun watching him splutter. And then, just as he started to recover and try answering, I hit him with "but they've all got paid lawyers."

435261: LOL - What'd he do?

162534: His face turned purple. I thought his head was going to explode. He started telling me how he is a paid attorney 'cuz all the attorneys in this county are court appointed. So then I hit him with "You only take cases because the judge makes you and you don't work hard on them 'cuz you don't get paid."

435261: OMG! What did he do?

162534: He started explaining to me his ethical duties and how he doesn't short appointed clients . . . blah, blah, blah. It was boring so I hit him with the next thing. I told him I wanted a jury trial.

435261: ROFL - And he believed you?

162534: He about panicked. I led him on for about another 10 minutes while he went over how overwhelming the evidence is and tried to explain to me how bad a sentence the jury would probably give me.

435261: Did you ever let him off the hook?

162534: Not exactly. I let him explain it all to me again and then I told him that I had to think about it. I'll string him along until the morning of the trial and then I'll tell him I'm taking the deal.

435261: Dude, you are just mean.

162534: Yep, but it was fun and killed two hours.