30 July 2007

Innocents in Jail - Writ of Actual Innocence

Last week there was some consternation voiced about innocent people going to prison.

The reason this problem has come to light is the time which has passed allowing data to be gathered on people who have been set free from prison because DNA found on a victim did not match the DNA of the person convicted. The assumption is then made that the same percentage of people convicted in non-DNA cases should not have been convicted. Of course, these people will never have absolute scientific evidence showing they should never have been convicted.

It's a disturbing thought. However, what is the solution? SW Virginia Law pointed out a couple weeks ago an article which tells us that no prisoner has been freed by the Virginia courts since the creation of the "writ of actual innocence" for non-DNA cases.

That's not terribly surprising. According to the article, most of the petitions were based on changed or new witness testimony. That's something of which anyone who has worked in court for a while will always be suspiscious. We've all seen witnesses come in and tell an entirely different story than they told the officer the night of the incident. Why do people change their story? Guilt over what's going to happen to the offender (or has happened). Pressure from the offender. Pressure from the offender's family and friends. A desire to keep child support flowing. Any number of factors. Don't believe me? Go spend a couple months in domestic court.

We've also seen cases where "Louie the Rake" wasn't called during the trial to testify because he has 17 felony convictions, has prison tattoos over half his body, is a member of the same set as the defendant and is obviously lying (so badly it's clear he will get destroyed on cross and take the case with him). If you've already lost the case why not depose Louie and use his testimony to get a new trial? It usually can't get any worse.

This is not to say that witness testimony couldn't be the basis of the writ. As Senator Stolle states in the article, if the victim were the only witness and recanted it could lead to a finding of actual innocence. However, even this would be subject to great scrutiny. An ex-girlfriend/ex-wife/sister/cousin who is the only victim/witness may recant over time because the family is constantly on her or, conversly, because she has become persona non grata in the family. She may regret the fact that the offender got 42 years in prison and after the 3 years she thinks is appropriate decide to get him out. As it is the offender who carries the burden, it would be the offender who bears the burden of proving the recantation did not proceed from these sorts of pressures.

There could also be the unknown, unrelated 3d party witness. Of course, this witness would be extremely rare and it's unlikely that an incarcerated individual would ever be able to find this witness. However, if such a witness were to be found he or she would be a strong basis for the writ.

Until the day we invent a machine which can reliably tell us when someone is lying, there will never be a satisfactory process for determining who among the convicted should not be there. Any system created by and composed of men is going to be flawed. There will always be those who are convicted when they should not have been and there will never be an answer which is satisfactory to everyone.

I don't have a satisfactory solution to offer here. Setting the writ at a level of proof as high as "clear and convincing" makes it extremely difficult for anyone to prove his innocence, but not impossible. A preponderance standard might be more appropriate. Personally, I think that it would result in a lot more petitions, but no more people being released from prison. Most writ petitions would still rely on witness testimony changing and I doubt courts are ever going to give that too much credit. The more troubling part to me is the foreclosure of the writ to those pled guilty. We have all seen people plead guilty rationally because they are facing three charges which each carry a mandatory minimum of 20 years if he is convicted by a jury in order to get the 10 years sentence which would be given in the plea agreement. What if a nun who witnessed the crime comes back from a 6 month mission to Liberia and can positively testify "No. It wasn't Bobby. I saw him running away from the gunfire. It was Joe who did the shooting." Bobby, who pled guilty to get a plea that would get him out before he died of old age, has absolutely no chance of getting his conviction overturned by the courts. Sure, he could get the sentence commuted or get a pardon from the governor, but neither of those establish his innocence and both of those solutions may be at the mercy of the political winds (ie a governor who is being accused of being "light on crime" may not pardon or commute anyone).

26 July 2007

Around the Web

1) Dying to defend your marijuana plantation.

2) THEY WERE 18, ONE-EIGHT, EIGHTEEN. Judge, that means they were responsible for their own actions - not the older adults who weren't in the basement with them when they broke the law by drinking. Remember, if you live in Chicago and your roommate is doing something illegal you now have to tackle him and report him to the police.

3) Oh, Sure, the old hypoglycemic defense. See that one all the time. I wonder if that would work in Virginia . . .

4) If you put up a blog, making fake claims that you were a male hooker having sex with important people, said important people will likely turn to the police for satisfaction.

5) 30 years isn't enough for raping a 12 year old retarded boy.

6) WoW brings together a North Carolina 17 year old and an adult lady from Australia, leads to their plot to get him to Australia, and her arrest.

7) Swindle the elderly, get twice the prison sentence.

8) The number of underage prisoners in DC jails has tripled.

9) When your name is Valliant you have a lot to live up to.

10) Giving prisoners cards with unsolved murders and missing people on them. Creepy.

25 July 2007

Sentencing Guideline: Felonies and Misdemeanors

Yesterday, SL&P was talking about a fuss in Michigan because of a proposal to change a number of felonies back into misdemeanors.

Personally, I don't have a whole lot of heartbreak about such a rollback. HOWEVER, I think that if you do this the misdemeanors must be given teeth.

I can't speak for other States, but from what I've seen in Virginia there are large numbers of minor offenses which could be better handled as misdemeanors. I can see this being handled in one of two ways.

Before I list the two ways I think this could be done, let me first say that "truth in sentencing" should be expanded to cover misdemeanors. In other words, the law in Virginia only requires a convict to serve 50% of his misdemeanor time, but requires him to serve 85% of his felony time. Those running the jails and prisons want to keep some of the "good time" so that defendants have some reason to behave (or serve 100% of their time). I can see this, but think that the misdemeanor time should be the same as felony time - 85% across the board.

The first way to handle matters as misdemeanors would be through the sentencing guidelines. Leave non-violent crimes in the statute books as felonies but allow circuit court judges and juries the power to reduce them to misdemeanors only if the guidelines allow it. Then have the guidelines recommend, on a first or second sentencing event, serious misdemeanor sentences in lieu of a felony conviction with probation (which would be the normal outcome of most first or second sentencing events). I'm not talking about the weekend or week in jail that most misdemeanors get in general district court, I mean 6 unsuspendable months for the first sentencing event and 12 unsuspendable months for the second - No Work Release; No Home Incarceration. If the offender is bad enough that he gets a third conviction, then treat it as a third felony conviction for purposes of the sentencing guidelines.

The other way I see to handle this would be to either reduce non-violent crimes to misdemeanors or split them, much the way larceny is split between grand and petit larceny depending on the amount stolen. Then either promulgate guidelines for the general district court to use in setting sentences (probably impractical) or set mandatory minimums. For instance, assault or battery of a police officer is currently a non-violent felony carrying 6 months to 5 years. It could be split into 3 different crimes. Assault could be a misdemeanor carrying a mandatory, unsuspendable 3 months; battery could be misdemeanor carrying a mandatory, unsuspendable 6 months, and there could be aggravated battery as the felony (aggravating factors: attack as part of a group, throw more than one punch, cause injury, et cetera).

Personally, I would favor the first situation over the second. I think it is a more workable solution and would avoid a lot of unnecessary appeals as offenders who were clearly guilty took advantage of their absolute right to appeal a finding of the general district court to the circuit court, not because they believed themselves innocent or that the the punishment from general district court was overly harsh, but because they wanted to buy themselves a couple months more of freedom between the general district court trial and the de novo circuit court trial.

What are the advantages of this? Well, for one thing, it would benefit any number of members of society who make mistakes while they are young and not later in life by keeping that felony off of their record and allowing them to actually be able to make something of themselves. Second, while it would cause a great pulling of hair, gnashing of teeth, and rending of garments at first, when the message sank in that doing these things actually resulted in jail sentences, rather than the probation everyone expects now, I think there is an excellent chance that there would be a drop in low level crime. I remain convinced that a offenders do cost-benefit analyses. They wouldn't use that terminology, of course. However, whether it is at the subconscious or conscious level, the fact that they've gotten away with it the last 5 times they went to the mall and shoplifted and that they know cousin Jack only got 3 years of probation when he got caught taking $800 worth of electronics out of Wal*Mart last year and Bobbi-Ann got the same when caught cashing $1,100 in bad checks at the local Stop-n-Dash gets thrown into the mix when they decide whether to go to Sears and steal a power drill (or whatever target of opportunity is available). Now, consider the same thought process when the offender knows that Uncle Jack got 6 months and Bobbi-Ann got 12. And, before everybody starts protesting, I know this will not solve all crime. If nothing else, there will always be people so desperate for a fix that they will do anything (I've personally defended men who cashed bad checks knowing they were being filmed, using their own ID, and putting their thumb print on the check). However, this provides a fairly powerful incentive for those who have some rationality and who are considering breaking the law.

What are the disadvantages of this? It shifts a hefty burden onto the local governments, which traditionally pay for jails. It could also lead to jail overcrowding and prison undercrowding, although I suspect that in this era of regional jails Pitcairn Prison could fairly easily become Pitcairn Regional Jail and alleviate that. At least in the beginning, there would also be a spike in the inmate population; I suspect this would level off fairly quickly and drop off some as word got around about the mandatory jail time got around. I think that the best way to handle all of this would be to reallocate financial and physical responsibility for people given 6 months or more to the DOC. Instead of Pitcairn Prison becoming Pitcairn Regional Jail it could remain under DOC's control and become Pitcairn State Jail, open only to those prisoners serving a sentence of 2 years or less.

It's a half formed idea, but I think the core of it is solid: convict less people of felonies, but make them actually go to jail for the misdemeanors of which they are convicted.

24 July 2007

Around the CrimBlawgs

1) Underdog cautions us against relying on what is in Michael Vick's indictment.

2) A prison error releases a shooter 36 years short of the completion of his sentence.

3) Remember when you thought putting a password on your blog would give you a reasonable expectation of privacy? Well, both you and LaFave were wrong.

4) Brian tells the world why he doesn't want you calling him on Saturday about your kinfolk's bond.

5) Where do criminal lawyers fit in the grand scheme of things?

6) A client, his brothers, and the bad decision.

7) Be careful when you forge that doctor's excuse for court.

8) Cool, maybe I should go be an evil governmental flunky in Texas so that I can wear a pistol to court.

9) Life for .03g of meth.

10) Don't want a DUI? Don't breathe while you're in your new car.

23 July 2007


Y'know, I cannot, for the life of me, figure out why defendants and their witnesses think that being purposefully obtuse, confrontational, or rude can benefit them in court. When I was doing defense work this was one of the harder things to control. Now that I'm doing prosecution work it's something that tends to cut in my direction.

A while back, I was handling a trial in which a phone call was important to both sides, depending upon whose version the judge believed. There had been various unnecessary difficulties in the case which left my nerves a little on edge and I suspect most everybody else's in the courtroom. The defendant calls a buddy of his who, with some prompting, backs up every bit of the defendant's version, telling the court that he was on "a three way" and heard the entire conversation. Then comes my turn to question him.
Me: You were on the phone all at the same time?

Him: Yep.

Me: Where were you during the conversation?

Him: My apartment.
Okay, now that's obtuse, but maybe not purposefully so.
Me: Were you using a land-line or wireless?

Him: Land-line.

Me: Was he on a land-line? (pointing at defendant)

Him: Yes

Me: And what room was your phone in?

Him: My phone's cordless. I can take it to any room. (petulantly) What particular conversation are you asking me about?
Okay, that is being purposefully obtuse.
Me: We all know exactly which conversation we're talking about.

Him: There has been more than one conversation.

Me: The conversation we've been talking about today. Where were you in your house?

Him: My kitchen . . . I don't know . . .

Me: Where was he?

Him: Who?

Me: The Defendant.


Judge: If you don't know, just say . . .


Judge: Then just say you don't know!


Me: But you remember the words of the conversation clear as the nose on your face?

Him (disdainful): Yeah.

Me: And you remember everything else you did with the defendant that day absolutely perfectly?

Him: sigh, Yeeeesssss, snort

Me: But you don't remember anything about where you were when the phone conversation was taking place . . .

The gallery breaks into laughter.

Him (glancing at the deputy who has materialized behind him, slightly chastised, but not totally): This is nuts. I apologize.

Judge (looking at me): Any more questions?

Me: No sir.

Judge (looking at him): Get out of my courtroom!

19 July 2007

Gotta Work

I've got a jury today and a jury tommorrow. Sorry, but I doubt I'll have time to post anything. :-(

18 July 2007

Interesting - Site Connections

Here's an interesting site which allows you to check which other sites are closely related to yours.

In CrimLaw's case it directly connected me to the following
Sentencing Law and Policy
Public Defender Dude
CrimProf Blog
Crime and Federalism
Arbitrary and Capricious
SW Virginia Law
LawBlogs Netring
Blogger Help
Weblogs at Harvard
I get the first several because those are blogs I read fairly regularly and have linked to several times. The netring is something I signed up for a loooonnngggg time ago. I'm publishing this thru Blogger so I understand that connection (though not so much blogger helper). I have no idea how I got linked up to the Harvard Weblogs.

Via Defending People

16 July 2007

The Second Simplest Explanation

I was cruising thru the blawgosphere when I ran across this:
In the defense of a criminal case, the second-simplest explanation that accounts for all the government's admissible evidence is generally the best.
This struck a chord because it exactly described the reason I won a trial I prosecuted last week.

The case was for assaulting a law enforcement officer. Not assault and battery, just assault. After nightfall, Deputy Smith was dispatched to a residence to respond to a domestic disturbance. He gets to the place and there are some family members there, but Mr. Greene, the one who started the fight is gone. As the family members are telling the deputy about a fight which rose out of a dispute over the hogs, one family member tells the deputy, "There he is" and points down the 100 foot gravel driveway to a truck that has pulled in and stopped down there.

Deputy Smith starts walking down the driveway and Mr. Greene starts quickly driving up. Deputy Smith has to jump off the driveway, over a drainage ditch, and onto a hill. However, this is not the grounds for the assault. Deputy Smith wrote that off to not being seen. Nevertheless, when he yells at the driver to stop, the truck stops. The deputy walks up to the truck, shines his light into the cab, and is told, "Get that F#*$ing flashlight out of my truck."

The deputy then tells the man to get out of his truck. The driver spins his wheels and moves the truck forward several feet; then he stops it and gets out. He emerges shirtless and upset, screaming obscenities at the deputy and yelling at him to get off the property. He also tells Deputy Smith that he knows Sheriff Quercus and he is going to get the deputy fired. The deputy is trying to talk back (loudly), but he is getting outyelled. The whole time Mr. Greene is waving his hands

Finally, Deputy Smith gives up and tells Mr. Greene he's under arrest for disorderly conduct and orders him to turn around and place his hands behind his back. Of course, Mr. Green isn't having any of that. He just keeps arguing with the deputy.

So the deputy steps forward and takes hold of Mr. Greene's left wrist. Mr. Greene then falls back, clenches his right fist, and cocks his arm back, getting ready to punch the deputy. Deputy Smith realizes what's going on, pushes Mr. Greene away, pulls the pepper spray off his belt, and sprays Mr. Greene. Mr. Greene then attempts to climb back into his truck and the deputy pulls him out, takes him to the back of the truck, and handcuffs him.

That's pretty much the extent of the Commonwealth's evidence. Sure, it's an assault, but I must admit I wasn't really thrilled to take it to a jury. I tried to negotiate with the defense attorney, but quickly came away with the feeling that the defendant wasn't going to let his attorney negotiate anything. It was a gamble for the defendant because a conviction of assaulting a law-enforcement officer carries a mandatory six-month sentence and I was willing to reduce this to simple assault if the defendant would plead guilty. Still, the defendant demanded his jury and you can't exactly walk away from the case when someone attempted to punch an officer.

This looks like it is going to be a very difficult case. I'm expecting the defendant to come in and admit pretty much everything except drawing back to punch the officer, saying something to the effect of "When the officer went handcuff me, I pulled my hand away. I didn't mean to punch anybody." or "I was just waving my hands around like I was before." It's going to be Deputy Smiths word against the word of Mr. Greene because all the other witnesses were on the other side of the truck, including the deputy's brother who was doing a ride along that night because he is considering becoming a police officer.

The trial date comes. As part of my case in chief, I put Deputy Smith on the stand and he tells the story which I've outlined above. By a happy chance, I also have Deputy Smith stand up and show the jury where the pepper spray is always kept on his belt. Then the defendant starts putting on his evidence. After calling three witnesses, none of which I'm certain helped or hurt the defendant, the defendant takes the stand himself and tells his story.

And his story is amazing. In his story, he got in an argument with his family members. After the argument was finished, but not because police had been called, he left. The reason he left was to go help another family member whose car had broken down. When he got back he pulled onto the gravel driveway and the deputy came running down the driveway shining his flashlight directly into the face of the defendant as he was driving his truck up the driveway. Then, after Mr. Greene stopped his truck, the deputy came up and, before Mr. Greene could do or say anything, told him he was under arrest. When Mr. Greene got out of the truck the deputy took him to the back of the truck and sat him down on the tailgate. Then the deputy left Mr. Greene sitting there in the custody of the deputy's civilian brother while Deputy Smith went back to his car and got his pepper spray. Meanwhile, Mr. Greene moved from the tailgate back up next to the driver side door. When he returned, the deputy grabbed one of Mr. Greene's arms while his brother grabbed the other and they forced his arms behind his back. Next they handcuffed him. At this point Deputy Smith took the pepper spray he had gotten from his car and sprayed Mr. Greene in the face. Then, after Mr. Greene told Deputy Smith to stop because he had eye problems, the deputy sprayed him twice more.

Suddenly, the case that I had considered very close became golden. The jury was out for 40 minutes and found Mr. Greene guilty. Now, I can't say the fact it wasn't the second simplest explanation was the only reason Mr. Greene was convicted. However, it was a major contributing factor. If he had humbly told his story admitting he had done all of it except attempting to punch the deputy and told the jury he was sorry that it had all happened a conviction in a swear off would have been difficult.

In fact, even if the jury hadn't believed the second simplest story there was a good chance they would have nullified. However, I'm fairly certain that the whopper he tried to sell them sealed his fate.

What a way to start a cross

In the same case above the defendant called his sister, Mrs. Patterson, to testify. She backs up the defendant's version of the story. However on cross I'm able to get her to admit that she was on the other side of the truck where she couldn't have seen what actually happened. But that's not the interesting part; the interesting part was how the cross examination began.

After the defendant's attorney finished his questions, I stepped up to the podium to start my questions. I start out with one it's not all that important and really just kind of a throwaway question. And the conversation proceeds something like this:
Me: Mrs. Patterson, how long is the driveway?

Mrs. Patterson: I don't have ruler. I don't know.

Me: Well then, about how long is the driveway?

Mrs. Patterson: I don't have a ruler; I've never gone out measured it. I don't know.

Me: Well, is it 100 feet? 70 feet?

Mrs. Patterson: Like I said, I don't know. I'm not good with distances.
At this point I decided try something different. During his questioning, defense counsel and asked her how far she was from where the incident took place. He'd done that without asking her actual distances; he just asked if it was about the distance from the witness box to the defense table. And she didn't have any problems with that.
Me: Let's try it a different way. Is the driveway as long as the courtroom, or maybe two courtrooms?

Mrs. Patterson: I don't know. I never measured it. And I don't know how long this courtroom is.

Me: So you can't tell the jury how long the driveway is?

Mrs. Patterson: No. I don't how long the driveway is.
At this point I just moved on to other questions. I'm still not exactly sure what the lady hoped to gain by refusing to tell me how long the driveway was.

10 July 2007

Get Rid of Lead Paint and Get Rid of Crime

Ummm . . . Sorry, not buying it. Lead paint was not the cause of crime and its removal is not the cause of falling crime levels.

Crimes been around for a while folks. I can believe all sorts of social causes for fluctuations in the crime rates over time, but to me this just screams correlation without causation.

And, before everybody screams at me, yes, I am a simpleton when it comes to statistics. However, I do agree with what Samuel Clemens said about them. Every time I see something like this, I wonder what other changes have also tracked with the item the statistician wants to show effected. We know that global warming has occurred. Perhaps minute changes in temperature effect criminal activity. How about asbestos removal? Could it track with the drop in criminal activity?

Inquiring minds want to know.

Refusing to Impliment the Legal Death Penalty

I almost titled this one "How to Drive Tom Nuts."

The Maryland governor is refusing to fix the implementation of the death penalty - which has been stopped by the courts - because it might get voted out of existence in the next legislative session.

Does Working in Criminal Law Effect How We View Children?

Sarena Straus lays out how years as a prosecutor, seeing all the evil that can happen to children, have effected her perception of the danger in children's lives.

Unfortunately, I think our experiences in the courtroom effect all of us so that we see the world in a skewed manner. I know it has me. Of course, most of my experience so far is from the other side. For one case I did a lot of research into children, allegations of child abuse, false memories, and lying. I've also watched a few cases tried by friends wherein there was no physical evidence and the basic argument came down to "why would this 9 year old kid lie about something like this" which is a devastating argument; nobody wants to believe a kid is telling an untruth. How do you counter that in front of a jury?

I used to love babysitting. But after all this I got a little paranoid about being left alone with children. Do I rationally realize that the likelihood of a false accusation against me is vanishingly small? Sure I do. But we're not talking about reality here, only how the courtroom effects our perception of it.

A Juror Who Really, Really Wants a Mistrial

Most of the time when a jury tells the judge it's hung the judge gives them an Allen charge in which he looks at the jury and basically tells them that the fact it's difficult doesn't make it impossible and what makes them think they can shirk their duties off on another jury. Sometimes he just lets them have a break overnight or over lunch, hoping that inflamed passions will cool and rational discourse can begin again.

Of course, most judges don't expect one of the jurors to go off and type up a diatribe against the other jurors during the lunch break.

Not surprisingly, there was a mistrial.

09 July 2007

Unusual, Strange, and Silly

1) After murdering 4 people and getting 21 years in prison a NZ inmate is now set to get an expensive bone marrow transplant to save his life. The victim's family's reaction? "He's sick. Rather than spend a million dollars on him, just spend a few dollars on an ounce of lead."

2) Police in the Philippines don't seem to favor the new fangled idea that a suspect should be given a "time-out" in the middle of a chase.

3) Y'know what? If you are going to commit consensual statutory rape, it's pretty dumb to do it on a highway.

4) A lot of soldiers are bold, but offering to sell a howitzer takes big brass ones.

5) Remind me not to get in a fight with Tacoma Officer Darren Kelly. I like my fingers right where they are, thank you.

6) Things I've never had the guts to say to a judge: "I bet if you took a poll in here everybody would say this is a kangaroo court."

7) Backdating is a crime? So, like, if I run into an old flame I can't date her anymore?

8) And then there's the idiot who tries to smuggle heroin into jail by sewing it in the court clothes for the defendant. It might sound innovative, but the deputies have seen that trick a few million times before.

9) Threatening to kill the jurors and their families if they find you guilty probably isn't the best trial tactic. This is actually a step in the right direction for this guy. The last time they tried to try him on this charge there was a mistrial after he actually slugged a juror.

10) 71 years young and still patrolling the mean streets.

11) Tired of your blackberry? Can't afford the new iPhone? Good news! Prisoners everywhere have worked out a communication system that doesn't cost a dime. All you have to do is speak into the toilet . . .

12) In NY you're not under the influence if the drug was huffed, but in NJ you are under the influence even if it's just a hangover.

13) Important lesson of NZ appellate practice: if the papers aren't stapled together you can appeal your conviction.

14) The ongoing battle over letting Californians smoke pot when they stub their toes is still ongoing.

15) Proof that a well planned escape is not necessarily a successful escape.

16) And, why doesn't the juvenile offender need to be tested for alcohol?

17) I guess if you have to impersonate somebody, Merle Haggard's son is as good as anybody else.

18) What happens when you try to ram a police car and then make a U-turn and try to ram him again? "[W]ith enough manpower, a K-9 deployment and the application of a Taser stun device, the suspect was subdued." So, what's the appropriate charge here? Attempted suicide by cop?

19) Don't burglarize a house next door to an FBI agent. Although, it was actually a different neighbor who finally ran the guy down.

06 July 2007

Virginia Supreme Court - The Year So Far

The next two posts are 2007's opinions from the Virginia Supreme Court on most criminal matters. As usual, I don't discuss many sufficiency of the facts decisions, unless there is something unusual about them. I think I only skipped 3 decisions: 1 habeas dismissal and 2 mandatory murder appeals which were the typical laundry lists.

I promoted the Obstruction of Justice decisions over top of the others because I believe that in those decisions the Supreme Court has rewritten Virginia's law and they will effect courts more on a day to day basis than the other decisions. The other decisions are in the second post. I did not link to those opinions individually; you can find all of them at this site.

The Supreme Court Changes Virginia's Obstruction Law

I've been trying to put together a post outlining the decisions of the Virginia Supreme Court so far this year. I'm about 2/3 of the way thru and will put it up either Friday or Monday. However, I realized that the decisions by the court concerning Virginia's Obstruction of Justice Statute (18.2-460) were too big to encapsulate in a blurb. Therefore, I am posting them now. The first decision is a truly terrible example of ignoring plain intent of a statute and legislating from the bench. The second doesn't change the words of the statute, but I'm not sure that "force" under the Court's new interpretation can be anything short of a force which qualifies as assault and battery of an officer - a separate offense in and of itself (18.2-57(C)).

Washington v. Commonwealth (no. 061042) Justice Kinser


The supreme court refuses to follow the very plain language of a statute. The language in question is a recent statutory addition, 18.2-460(C):
C. If any person by threats of bodily harm or force knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, witness, or any law-enforcement officer, lawfully engaged in the discharge of his duty, OR to obstruct or impede the administration of justice in any court relating to a violation of or conspiracy to violate [gang, drug distribution, or violent felonies] he shall be guilty of a Class 5 felony
and the older, misdemeanor subsection, 18.2-460(B):
B. If any person, by threats or force, knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or any law-enforcement officer, lawfully engaged in his duties as such, or to obstruct or impede the administration of justice in any court, he shall be deemed to be guilty of a Class 1 misdemeanor.
The section in green is an obvious overlap. The supreme court turns to a series of obscure cases from 1933, 1925, and 1909 for the principal that punctuation is to be used as a way of interpreting a statute only if the reason can't be found by legislative intent. Of course, this ignores the more modern and dominate method of changing the statute only in case of a scriviner's error. The court also offers one case for the principal that if there are two possible interpretations for a statute the interpretation must avoid "absurdity, hardships, or injustice." It uses these case to justify ignoring the plain meaning of ", or" in subsection C and legislating an "and" in its place so that in order to be convicted the defendant must offer threats or force AND obstruct or impede administration of justice in a court for the specified offenses.

Obviously, that doesn't even remotely track with the meaning of the statute. To begin with, there was no ambiguity where the court claims to have found it. There are not two meaning for "or." In fact, if the court had wanted to find ambiguity it could have done so easily earlier in subsection C where it says "by threats of bodily harm or force." Unlike subsection B's "by threats or force", there with ambiguity in C as to whether "threats of" applies to one or both objects of the subjunctive

If the court had found that "threat" applied to both "bodily harm" and "force" it would have distinguished C from B and set up a commonsense penal scheme. Under 18.2-460(B) threats such as getting someone fired or withholding child support would be a misdemeanor; minor offers of resistant force would also be a misdemeanor (most typically, these are the guys who resist being handcuffed). Under 18.2-460(C) threats of bodily harm or threats of force such as "I'm going to kill you" or "When you come to serve the warrant I'm going to punch you" would be felonies. Under 18.2-57(C) actual assaults (under Virginia law a physical threat with a step taken toward completion) or batteries of police officers would be felonies with mandatory 6 month sentences.

Unfortunately, the court did not do that. Instead it legislated a different meaning for a section of the statute which had a very plain meaning.

Jordan v. Commonwealth (no. 061211) Justice Kinser

REVERSAL Facts Insufficient: Possession with Intent, Obstruction of Justice

Possession with Intent: When a passenger in a car drops drugs out the side of the car, the fact that the the driver admits that a large amount of money in the glove compartment is his and that he had just come from a club is not enough to convict the driver of possession with intent to distribute.

Obstruction: When the defendant stole the money which the officer had confiscated from the police car, resisted being handcuffed, walking away from the officer so the officer had to pin him to the wall several times, stopped so that the officer walked into him, and stuck his hands in his groin area requiring that the officer pull them out to fingerprint him it "did not involve the use of force. Furthermore, it did not impede or prevent Officer Kern from performing his tasks."

This case specifically overrules the court of appeals holding that stealing the money was impeding and that resisting being handcuffed was a use of force. This seems to overrule the longstanding practice in Virginia of charging someone who resists being handcuffed with obstruction of justice. There may still be an argument for this charge under subsection A of 18.2-460 which merely calls for knowing obstruction, but the supreme court seems to use impede and obstruct interchangeably in this decision and clearly states that the defendant's acts were not enough to impede.

The Rest of the Virginia Supreme Court Decisions

West v. Director, Dept. of Corrections (no. 052263) Justice Keenan

Double Jeopardy, Ineffective Assistance of Counsel

Defendant was convicted of both aggravated involuntary manslaughter and involuntary manslaughter. Defense counsel argued that the prosecution had to "make an election" between the two charges, but never said the magical words "unconstitutional" or "double jeopardy." The trial judge found the defendant guilty of both and sentenced him to 5 years on each, to run concurrent. On direct appeal both the court of appeals and supreme court ruled that the constitutional double jeopardy issue wasn't preserved and upheld the conviction. In this habeas decision the supreme court finds that defense counsel provided ineffective assistance because he didn't argue the constitutional issue and that it is pertinent because the court rejects the "concurrent sentencing doctrine" and the decision will release the defendant from prison on one sentence (if not the second concurrent sentence).

Conley v. Commonwealth (no. 060120) Justice Koontz
Fitzgerald v. Commonwealth (no. 061361) Justice Koontz

Social Worker as Expert Witness, Professional Counselor as Expert Witness

"[L]icensed clinical social workers [and licensed professional counselors] who are authorized to diagnose mental disorders by statute in appropriate circumstances, may render expert testimony regarding such diagnoses. However, it remains incumbent upon the trial court to determine whether a particular licensed clinical social worker has the skill, knowledge, and experience regarding the pertinent subject matter to qualify as an expert."

Farrakhan v. Commonwealth (no. 060252) Justice Lemons

REVERSAL Statutory Interpretation - Definition of Concealed Weapon (18.2-308)

A kitchen knife is primarily a tool and therefore does not qualify as a concealed weapon because the statute prohibits concealment of knives which are only used as weapons and "any weapon of like kind as those enumerated in this subsection." This is a well reasoned discussion of statutory interpretation which comes to the correct, if disturbing conclusion (large kitchen knife was concealed and then used in a robbery).

Shelton v. Commonwealth (no. 060280) Justice Keenan

Preserving Error

In a civil proceeding to put a sexual offender in a mental institution rather than release him at the end of his sentence, a written objection to a specific matter before trial and the signing of the final order as objected to (noting that the "trial court erred in denying [the] motion to dismiss for reasons stated in the motion to dismiss") gave the trial court sufficient notice of the issue and preserved it sufficiently for appeal.

Johnson v. Commonwealth (no. 060363) Justice Keenan, &
Carpitcher v. Commonwealth (no. 060638) Justice Keenan

Writ of Actual Innocence, Recantation by Witness

In order for a writ to be based upon a recantation the recantation must be material. A material recantation is one that is proven true by the inmate by clear and convincing evidence.

Robinsons v. Commonwealth (nos. 060417 & 060426) Justice Lacy

4th Amendment, Police Intent, Entry Onto the Curtilage

A police officer's subjective intent when entering curtilage is not considered; whether there was a valid objective intent is the only factor considered.

An officer entering the curtilage of a property is not limited solely to going straight to the front door and doing a knock and talk; the officer is only limited by what is reasonable under the particular circumstances. The officer pulled his car into the driveway and, before his car passed the sidewalk leading from the driveway to the front door, observed two underage individuals drinking beer. This, coupled with the fact that they yelled "cops" and ran made the officer's movement past the sidewalk to the front door and into the backyard reasonable.

Young v. Commonwealth (no. 060473) Justice Keenan

REVERSAL When Error Requires Only a New Sentencing Hearing, Statutory Interpretation

During the bifurcated jury trial, the Commonwealth caused several items to be seen by the jury during the adjudication phase which were prejudicial. The defense objected and the judge admonished the jury not to pay heed to the items. On appeal the court of appeals found that the introduction was harmless error as to the adjudication phase but not the sentencing phase. The court of appeals ordered the case returned to the trial court for a new jury to be empaneled solely to redo the sentencing phase.

The supreme court finds that the court of appeals has erred because it has rewritten the statute. 19.2-295.1 is unambiguous in its call for remand for a new sentencing hearing "due to an error in the sentencing proceeding" and the court of appeals had rewritten that to mean "due to an error affecting the sentencing proceeding." Under the correct, unambiguous reading of the statute an error in the adjudication hearing requires a new trial.

Ellison v. Commonwealth (no. 060482) Justice Russell

Sexual Predator, Civil Imprisonment Trial, Evidence

In a civil imprisonment trial the Commonwealth can introduce evidence from a charge of which a jury previously found the defendant not guilty.

Commonwealth v. Epps (no. 060607) Justice Lemons

Contempt, Judge Testifying

On an extremely narrow issue the supreme court affirms the court appeal's finding that contempt lies against the court, not the judge. Therefore, a judge did not qualify for the exemption allowing a judge to testify if she is a victim.

Ward v. Commonwealth (no. 060788) Justice Agee

Absolution of Search Warrant Errors by Leon

Even if issuing an anticipatory search warrant based upon an affidavit for "129 South Old Church Street" instead of the address on the package which the police were tracking, "129 Church Street", is error all the errors are absolved by Leon.

McDowell v. Commonwealth (no. 060989) Justice Carrico

Introduction of Evidence, Modern Shopkeep Rule

Under the modern shopkeep rule, as applied in Virginia, as long as the records of an inventory are regularly kept in the course of business there is no need for the person who did the inventory to testify in court.

Commonwealth v. Miller (no. 061015) Justice Keenan

Sexual Predator, Civil Imprisonment Trial, Experts, Statutory Interpretation

The statute is unambiguous that in order to testify in a civil imprisonment trial the mental expert must be "skilled in the diagnosis and treatment of mental abnormalities and disorders associated with sex offenders." Merely having training and qualification to diagnose, without ever treating sex offenders, is not enough.

Justus v. Commonwealth (no. 061218) Justice Koontz

REVERSAL Withdrawal of Guilty Plea Prior to Sentencing, Statutory Interpretation

19.2-296 allows for withdrawal of a guilty plea. After sentencing withdrawal is allowed under a "correct manifest injustice" standard. Therefore, a motion to withdraw a guilty plea prior to sentencing is subject to a lesser standard. In that case "the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be [availed] by permitting not guilty to be pleaded in its place." If there is evidence of a reasonable defense the withdrawal must be allowed.

In a proceeding under 19.2-296 the Commonwealth is not entitled to the presumptions in its favor flowing from the colloquy it would have in a habeas proceeding.

Baldwin v. Commonwealth (no. 061264) Justice Agee

REVERSAL Sufficiency of Evidence, Attempted Murder

When an officer is standing next to the driver's door on a car and the driver turns the car toward him and enters traffic in order to escape it is not sufficient evidence to support an intent to kill.

Grandison v. Commonwealth (no. 061296) Senior Justice Stephenson

REVERSAL Terry Pat Down, Plain View of an Item

A folded dollar bill which an officer sees hanging out of a pocket during a Terry pat down is not constitutionally seizable even if the officer recognizes that the way the bill is folded is in a fashion used to store drugs.

McDonald v. Commonwealth (no. 061456) Justice Lemons

Sodomy, Age of Consent

Sodomy statute is constitutional when applied to cases involving minors.

Robinson v. Commonwealth (no. 061911) Chief Justice Hassell

REVERSAL Rule Of Lenity, Statutory Construction, "Hit and Run" Statute

Virginia's Rule of Lenity:
"A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter though within the reason and policy of the law.

"To constitute the offense the [defendant's conduct] must be both within the letter and spirit of the statute defining it. Those who contend that a penalty is imposed must show that the words of the act distinctly cover the case. No conviction can be had if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty.

"If a penal statute be so ambiguous as to leave reasonable doubt of its meaning, it is the duty of the court to refuse to impose the penalty."
Relying on a dictionary definition which has a large number of variant meanings is not appropriate under this standard.

46.2-894 requires that a defendant must be "involved" in an accident. Involved is ambiguous and must be construed under the rule of lenity. As such, its meaning for this statute is "in order for a driver of a vehicle to be involved in an accident within the intendment of the statute, there must be physical contact between the driver's vehicle and another vehicle, person, or object, or the driver of a motor vehicle must have been a proximate cause of an accident."

Side note: "Intendment?" The Chief Justice uses this highly unusual word several times in the decision. Personally, I think the Chief Justice has probably been reading too many pro se motions from inmates. ;-)

02 July 2007

Don't Blame Me

I have to try a jury today, but I thought I'd leave you all with something to contemplate.

BTW: Don't send your nastygrams to me. I am just the messenger. If you want to contact the co-worker who is responsible for that send a snail-mail letter to my office and I'll make sure she gets it.