29 June 2007

An Interesting Question

Once upon a time their was the common law doctrine of the exculpatory no. Basically, if an officer asked you if you robbed the bank and you said "no" you couldn't be prosecuted for the lie because it was a claim of innocence - or maybe just that you were not guilty. This doctrine still exists under Virginia law (although you cannot lie about another person's illegal activities). Under federal law this doctrine has been done away with by statute. We've all seen the cases which result wherein the feds can't make the case against a defendant and then charge him with lying to a federal agent.

Orin asks if that might be unconstitutional.

Admittedly, I haven't researched the history under the common law, but if the doctrine of exculpatory no existed at the time the constitution came into being it strikes me that this could very possibly be a right. Most probably it is a variation upon the defendant's right to not incriminate himself and force the government to prove he is guilty.

On the other hand, if it is just a common law development, in particular one developed after the Bill of Rights was brought into the constitution, it could very well be subject to legislative revision or overruling.

I lean toward the first interpretation because I feel it is truer to the spirit of the constitution.

Anyone out there actually put thought or research into this?

26 June 2007

The Wal*Mart Mug Me Machine

So, I am at Wal*Mart and I need to buy a money order. I go to the return desk where you'd normally buy that sort of thing. Unfortunately, on this date the return counter is also checking people out and the couple in front of me is checking out in some sort of byzantine manner that involved sorting the stuff in their basket into three different groups and paying for each separately. While I'm waiting, I spot an ATM-like machine that Wal*Mart has set up on the other side of the of the checkout line which sells money orders.

By the time the couple in front of me has completed their transactions there are at least 5 impatient people behind me waiting their turn. I don't want to make all these folks wait while the clerk figures out how to sell me a money order and I definitely don't want these people to see me pull hundred dollar bills out of my wallet to pay for it. So, I decide to go use the machine so that I can keep my transaction private. I pay for my snickers bar and walked over to the machine.

I hit the start button and the machine gives me instructions to enter the amount of the money order. I hit the numbers and push "Enter" on the screen. Suddenly a voice comes from the machine, "THREE HUNDRED FIFTY DOLLARS." Holy Crud! Everybody within 50 feet heard that clearly. I quickly hit the "Pay" portion of the screen and it announces in a loud claer voice, "PLEASE ENTER THREE HUNDRED FIFTY DOLLARS AND FOURTY SIX CENTS." I stick a hundred dollar bill in and it announces "PLEASE ENTER TWO HUNDRED FIFTY DOLLARS AND FOURTY SIX CENTS." I stick another hundred dollar bill in and it announces "PLEASE ENTER ONE HUNDRED FIFTY DOLLARS AND FOURTY SIX CENTS." I stick another hundred dollar bill in and it announces "PLEASE ENTER FIFTY DOLLARS AND FOURTY SIX CENTS." I stick another hundred dollar bill in and it announces "YOUR CHANGE IS FOURTY NINE DOLLARS AND FIFTY FOUR CENTS."

Everybody in the line or who walked out the door (which was next to the return desk) heard every bit of my transaction. Luckily, it was in the middle of the day so I felt semi-safe walking as quickly as I could to my car. And, believe me, I was very happy that it wasn't night time.

22 June 2007

It's Good to know Kentucky is taking a stand

It will now be a felony "to force someone into labor, domestic work or the sex trade."

Funny, I thought there was an amendment to the federal constitution which handled that a long time ago.

Sometimes All You Can Do is Say "WOW!"

A .50 BAC.

That's right - You read it right - not .05 or even .25.

A .50 BAC.

Forget jail. They ought to take her straight to Area 51 and try to figure out what kind of alien she is. 'Cuz, nothing human survives after substituting that much alcohol for water in the blood stream.

21 June 2007

Citizen Complaints Part 2

Another part of citizens being able to go and file their own criminal complaints is that the citizen usually files paperwork subpoenaing witnesses at the same time. Of course, the citizen doesn't know whom to subpoena so some will subpoena everybody they think might be relevant. And they usually miss a necessary witness or two in the process.

It's a citizen complaint involving fraud at a family owned store. The citizen hasn't subpoenaed anyone from the bank to verify needed records, but she has subpoenaed everyone who has a store at the same mini-mall where her family's store is located.

1 p.m. rolls around and I walk into the courtroom. There are about 8 people sitting on the front row and before I can even set my papers down the lady on the end stands up:
Lady: Are you the county attorney?

Me: No ma'am, I'm the prosecutor.

Lady: There's no reason for me to be here. I don't know anything.

Me: Ummm . . . Ma'am, what case are you here for today?
At this point I notice that the other merchants who are sitting on the front row with this lady are starting to laugh.
Lady: I'm here for the case against Bobby. I live in Kentucky and I had to get up out of bed and come all the way up here for this and I don't know anything! I want to know why you subpoenaed me!

Me: Ma'am, this is the first time I've seen you . . .

Lady: First, time I've seen you too; don't have nothing to do with subpoenaing me.
At this point I notice that the merchants in the front row are doing everything in their power just to keep from howling in laughter.
Me: Ma'am, I didn't subpoena anyone to be here today. Which case are you here for?

Lady: The one he wants me here for. (points to a man sitting 2 rows behind)

Me: Let me talk to the gentleman and see what is going on.

Lady: You do that.
I go out and talk to the gentleman and realize that none of the merchants needed to be there at all. In any case, when I come back in the court the judge is on the bench. He immediately calls the case because the defendant hadn't been able to hire the attorney she told the court she was hiring and now wants a court appointed attorney. So the judge appoints an attorney and continues the case for a month. I motion all the witnesses outside to tell them what's going on and the last one out is the Lady.
Lady: I came all this way and you aren't even having a trial?
Sometimes all you can do is smile.

And then there's Citizen Complaint Day

In Virginia anyone can walk into a magistrate's office and, if he can convince the magistrate, file a criminal complaint against another person. So, once a month we have citizen complaint day. Much of the time the citizens have resolved the situation themselves by then and most other situations can be resolved after a little give and take and an agreement that the defendant and complaining witness will stay away from each other for 6 months. Nevertheless, there are some cases you just can't get resolved and you have to put the case in front of the judge and let him decide the issue. And then some of the strangest things happen.

It's a he said - she said case and neither side is willing to budge a bit. I put on the complaining witness to tell the judge his version and the defense attorney has done his cross. At the end the defense attorney asks a throw away impeachment question and the conversation goes like this:
Attorney: Have you ever been convicted of a felony?

Witness: Of course.

Attorney: How many felonies have you been convicted of?

Witness: I don't know.

Attorney: Well, have you been convicted of 10? 15?

Witness: No, it was about 20 or 23.
The whole conversation took place quite matter of factly, like the complaining witness was talking about the weather or the color of the paint on the wall.

Gotta love citizen complaint day.

20 June 2007

AHA!!!!! I knew he couldn't stay away!

Jeff's back!

This blogging thing is as addictive as crack. Maybe someday I'll sucker ahem, I mean convince him he should contribute here.

Around the Web

1) Not the greatest fortune teller the world has ever known - she didn't even know which of her clients would turn her into the police.

2) Don't mess with this guy's mom - he'll take your own gun from you and start ventilating.

3) If the defendant writes the following to the judge while asking for leniency your case is probably in deep trouble: [my] mental illness "casts a lingering shadow over the case that leniency could help dispel."

4) A judge throws a defense attorney in jail for contempt when she refuses to answer questions about her client's case because " [t]he judge had already found that attorney-client privilege did not apply to issues of evidence destruction and that in any event her testimony on the issue at two previous hearings was a total waiver of the privilege." I think the judge is probably right on the first issue, but he's wrong on the second. No action by defense counsel can waive the attorney-client privilege. The only person who can waive that privilege is the defendant.

5) Look Ma! The police have gotten themselves backward some Big-Wheels!

6) Where's the loyalty? Even the mob can't keep 'em in line anymore.

7) Mandatory alcohol tests for officers who shoot someone. Doesn't strike me as a terrible thing. The fact that it is felt to be necessary, now that bothers me.

8) The great row-house ladder battle.

9) If you forget to put restitution in the plea agreement the judge will keep you to the 4 corners of your agreement - even if it costs you over $140 million.

10) I hereby sentence you to 3 years, without a date. Huh?!?

11) And then there are the judges who just can't get over the Beatles.

12) Jesus cares about traffic safety.

13) If you're going to blog about the trial you're a juror on, don't brag about lying during jury selection.

19 June 2007

Comes Now a Prosecutor . . .

Once upon a time there were no criminal law practictioners posting blogs. Then came forth from the dark a whole slew of defense attorney blogs came forth.

Nows comes the great hope for the prosecutors . . . . The Prosecutor's Page.

Many Apologies

Sorry folks, between being sick the first half of last week and swamped the last half of last week, I just didn't have time to research and write. This week's might be pretty tight too. I am running general district court this week and I have to do my normal workload in circuit court as well. Should be fun!

08 June 2007

Paris Hilton Dragged Screaming Back to Jail.


Nice Guys, AIN'T

They were nice, likable guys - who were stealing people blind

That Looks Uncomfortable

I don't care how often I see Fred laying on my gravel driveway, I cannot believe he's comfortable:

And, sometimes Buzz doesn't quite fit on top of my computer:

The Ducks of Pound

They weren't the slightest bit interested in me on my way into the grocery store, but they pressed me when I came out:

I think someone's figured out where the bread crumbs come from.

04 June 2007

Around the Web

1) If the government accidently issues you a check for $2.5 million, it will come looking for it.

2) If you have a warrant in Tacoma it's time to turn yourself in.

3) Two juries in one trial - this is a recipe for disaster if I've ever seen one.

4) Finally, if you dress like this guy you can't really be all that surprised if you are convicted: