29 May 2008

TriCities.com: Michael Shull

The article.

The Victim Speaks,
Or Can She?

If the victim told the police that John Smith was going to kill her, can her statement be used in John Smith's murder trial?

Phil Telfeyan: And Ken *Yawns*

A kid, who has apparently spent his entire academic life at Harvard, wrote a polemical law review article in which he discovers *gasp* that there are poor people in the world and fusses at the elite for not doing more. Ho-Hum. So, what? It's not like this hasn't been done a thousand times before. I bet we've all been to CLE's where some out-of-touch, ivory tower or biglaw speaker has harangued us at lunch about our social responsibilities (and promptly been ignored).

Then, why the fuss? 1) He got his non-legal opinion piece published in the Harvard Law Review, and 2) The kid wasn't ready for prime time.

People came out of the woodwork to attack the article as entirely inappropriate for the Harvard Law Review. I mean, [snooty nasal accent] OMG Lovey, we just can't have this sort of thing at Hahvahd [/snooty nasal accent]. I've got to agree with Scott on this: "Who cares what appears in HLR, since it's of no consequence to real life lawyering anyway."

Look, law reviews have long ago become irrelevant. The only place you see them is at a law library, and even there they are just space wasters. I've never quoted a law review article to a court or even in an appellate brief. Even in the rare occaission that one might publish an article useful to a practitioner the practitioner would never know about it. After all, when the last three years have been filled with articles with titles like "Existential Judiciary Decisions, Leaps Not Naturally Lawful in the Jurisprudence of the 8th Amendment" even your most avid practitioner is going to stop taking the time to look through the law reviews; there are many out of touch law professors and no matter how often they point at those of us who actually practice as being the problem, nobody who is actually practicing law is going to start reading law review articles any time soon. Should the note have been published in the Harvard Law Review? No. Does it make one bit of difference to anyone? No.

Unfortunately for young Mr. Telfeyan, it looks like I'm in the minority on this. Therein lies the problem. He just gets ripped to shreds. Comments on the Volokh Conspiracy went nuts. They rip the article because it starts out and begins to base its argument on a statue at Harvard which he very badly misinterpreted (isn't this more a commentary on the person who reviewed the kid's article and didn't bother to check what the statue was about?). Then they go after the kid. He is portrayed as strange because he collects hats. He is portrayed as the stereotypical faux progressive who did some protest in High School to save Pajama Day and carries the socially aware trappings with him, while traveling the elite route of Harvard all the way through Law School (used to hear these called "limousine liberals" but I think the term has fallen out of use). He is portrayed as not putting his money where his mouth is since he is taking a position clerking for conservative Judge Janice Rogers Brown on the DC Circuit rather than pursuing the lower paying socially conscious positions he urges others to take. Then the young man makes the mistake of responding and feeding the fire by pointing out that he was the national moot court champ, not something which impresses most post law schoolers; he also said he'd start a blog - but it's locked down so only people he wants in are in.

Okay, everybody just take a second and catch their collective breaths. He's a young man raised in Northern California and edumacated at Harvard. This means he is probably much smarter than most of us, but has not had one bit of reality intrude on the social concepts he has had drilled into his head since birth. Are some of his actions hypocritical in the face of his article? Probably, but for all I know after he finishes his clerkship he will move down here in the mountains and take a job at legal aid, or as a court appointment lawyer, or even a prosecutor (send a resume, I'll give it to my boss) - eschewing the big paycheck waiting on the other side of being a clerk. And, if you want to lambast someone, find out who okayed the note for publication and go get her/him. The note shouldn't have been published in a law review, but it's not Phil Telfeyan at fault for submitting it - someone in the process should have pushed him toward something actually legal instead of an editorial and apparently no one did.

28 May 2008

Different Courthouses, Different Things

Every county courthouse has things which set it apart. Yesterday, I was at a courthouse a couple hours down the road and thought I'd share some of the unique features.

Most of the courthouses I've seen in Virginia have the ubiquitous Confederate soldier somewhere on the grounds. Not this one; here they have a coal miner.

That's pretty cool and more appropriate to this area of Virginia.

Of course there were monuments to the county's war dead, including Vietnam, Korea, WWII, WWI, and the War of Northern Aggression. Inside there were the required pictures of important people from times gone by (most courts have these). However, there were also mounted animals.

The deer has a placard introducing him as "Moe" and explaining that he was taken from a poacher. No explanation for the predator.

The coolest thing in the courthouse was something I couldn't take a picture of. In the Circuit Court there is a stained glass window of Lady Justice behind and above the judge. However, I just didn't have the nerve to pull my camera out and snap a photo while court was in session.

27 May 2008

Was the Officer Wrong?

From Fight 'Em 'Til We Can't:
The Billings media is all abuzz about a nearby small town cop who arrested someone for misdemeanor DUI and negligent endangerment after the cop shot at the guy through the windshield of his own patrol car. Yeah.
So, I figure I'm off to watch a rookie officer make some major error in judgement. By sheer chance, I watched the complete version found on KTVQ's site on the upper right. The officer is following someone and lights him up. The car being stopped pulls into an alley. The officer stops his vehicle back some from the stopped car (I'd guess 20 feet). As soon as the officer stops his vehicle the car in front of him accelerates back into him, smashing into the police vehicle. Then it starts to take off again and, after going 100 feet or so, stops and pulls into a parking spot. The officer jumps out of his car and yells something about shots fired and things progress from there. However, I can't tell when the shots were fired. Maybe the reason there's been such a problem is that the shots were fired before the car moved?

Next I watched this from the Billings Gazette. Nope, the initial attack was completed and the attacker was moving forward when the officer shot at him/his car. This video, which is much better quality, goes forward and shows the attacker getting tazered twice as well.

This, ladies and gentlemen, was a justified use of a firearm. I don't know why people cannot get it through their collective heads that a car can be every bit as effective a weapon as a firearm. Yeah, the offender claims he put it in reverse accidentally. However, we've all done that and you stomp on the brakes and stop the car after a few feet; you don't accelerate to contact. The offender just threw a couple thousand pounds of metal at the officer - that's an aggressive, life-threatening act. The officer has no idea if the offender is going to jump out with a firearm or pull forward and then ram him again. He is justified in reacting in a manner meant to preserve his own life.

BTW: As most of you know, I am dubious about the use of tazers. Not this time. The officer was alone and had a man on the ground who had already put the officer's life at risk - he'd demonstrated his dangerousness. The man started to get up. He's lucky the officer had switched to the tazer, because he still represented a clear and present danger to an officer who could have seen any action as a possible further attack.

It was an appropriate response. And the officer even scaled down his reaction as the event progressed. I'd say he handled the situation as well as anyone could be expected to.

26 May 2008

CLTV 27: Memorial Day, Buzz Out Loud, Pagination, and Blawgs

The new CLTV is up and the title says it all. No, I do not own and was not wearing a lavender shirt. It's blue; BLUE, I say! Some day I'll actually learn that I can't have anything green, blue or yellow in the frame if I'm going to green screen.

The fitzing out when I move is something that happened when I converted this to dvix. When I had it in regular uncompressed it wasn't there. Then I went to upload the file and it was going to take 16+ hours. After I converted to dvix it only took 1+.

Anyway, the link to the big version at CLTV itself is here.

Their Sacrifice, Our Duty

On Memorial day it is not only a time to remember their sacrifice, it is time to remember our duty.

These United States have never been perfect, we have been afflicted with Know-Nothings, Klansmen, Blaine Amendments, Grant's Black Friday, the Teapot Dome Scandal, Watergate, etc. We will never be perfect. However, the sacrifice of these young men and women calls us to the struggle. They have died, leaving us the duty to make our country a better place for those left behind.

They gave all - the question is whether we are honoring the sacrifice.

Thanks for the photo

22 May 2008

Failure to Handle Youth Crime in the UK

1) Government efforts have had no measurable impact.

2) Despite millions of pounds poured into youth programs over the last decade.

3) Some kids even preferred to go into detention.

4) As a result"[m]ore children have been criminalised and sent to prison, but the level of youth crime has remained unchanged."

The Crime of Tech

1) If you are trying to be a tech professional and you fall for this sort of scam I'm not sure I want you working for my company.

2) "Canadians are more likely to be victims of crime on the Internet than they are on the streets."

When All the Guns Are Gone, We'll Be Safe

Just like the U.K. Oh, wait, now they've got knives.


1) Doughnut truck.

2) Zipped in a suitcase and stowed with other cargo - then coming out and stealing from other suitcases.

3) Don't smoke while stealing gasoline.

4) 3 kegs.

5) Don't try to steal from someone carrying a big steel trashcan.

6) Car thief who deserves every last second of the 8 years he got.

7) 10 tons of cheese.

8) 50 parakeets.

9) If you're going to be a professional thief, turn on your headlights as you drive away.

10) As always, someone steals from a church.

11) One-legged, wheel chair bound truck thief.

12) Prom Dress stakeout.

13) Stealing library books using a child's name.

Does Probation Work?

"OFFENDERS on good behaviour bonds under the supervision of probation and parole officers are just as likely to commit further crimes as offenders placed on unsupervised bonds."

Not Sympathetic: Rejoining Felons to Society

In Virginia there are barriers as to what a convicted felon may do. At times these seem on the draconian side (ie, for someone convicted of felony shoplifting 20 years ago); I have some empathy for the non-violent, single offender. However, if you commit masked, armed robbery of two banks I'm not going to find a whole lot of sympathy in my heart when you face a lifetime of relatively minor consequences.

21 May 2008

Don't be Suspected of Committing a Crime in Italy

She can be held in jail for a year while they try to find out if she did it.

Beware Super Skelly

If you post something about PD's on the internet Skelly will find it and call you out.

Oops, it seems like the offending, obnoxious post has been taken away after a protest was registered. Fair use, ain't it a . . .

Violate Terms of Service? Go to Prison

The Feds are pursuing a case with an interesting theory: violating the terms of service on a website is fraud. It's an interesting, if troubling, theory. I wonder if anyone who is using the internet as a socializing/information gathering isn't violating the terms of use for some website. I mean, how many of you are following my terms of use as spelled out at the very bottom of this blog page? Some of you people owe me a lot of money.

Anyway, the reaction in both the Tech and Legal communities has not been favorable:


Orin Kerr

Concurring Opinions

Geeks are Sexy

Andrew R H Girdwood

19 May 2008

Yes, Prosecutors Can Be Sanctioned

For those of you who don't believe that prosecutors get sanctioned, there's one man who disproves your theory:

While chief elected prosecutor he got in trouble for writing an inappropriate letter to a judge, getting in a physical fight with a defense attorney, and requiring a $25,000 donation to charities of his choice as part of a plea deal. He got five days in jail for the fight and a six month suspension of his license for the donation.

Of course, he later went on to become a high-powered defense attorney who spent time in jail for yelling at a State trial judge. After flouting federal court rules he got 90 days in jail and 90 more for violating his probation; he was also disbarred in a federal district. He was later suspended and finally disbarred by the State.

Then he went to Australia and tried to become a Barrister. For some reason they turned him down. In fact, while there are many people who can recite the facts above (and many more) by rote, the Australian rejection document is the best laid out for those not familiar with the man (This is an amazing must read).

So, what do you do when you are disbarred and can't get licensed (even in another country)?

You become a politician in your State's House. I kid you not.

17 May 2008

Off Point: Fun Movie Reviews

I just wasted over an hour of my life watching raunchy, animated movie reviews on this website. It's hilarious. Not work friendly. Not family friendly. Just fun.

Hmmmm . . . I wonder if I could do an animated CLTV episode?

Okay, Some Police Forces Might be a Little too Aggresive

16 May 2008

Sorry, I shan't be linking to your advertisement blog

In the last two weeks I have gotten a number of invitations to exchange links with someone's advertisement blog. The reason given that I should cross-link is that "it will help both of our ranks on Google, Yahoo, and Ask."

I am sorry, but I shall not be linking to "Most Superwonderful Jaywalking Attorney" blog any time soon. Let me explain why. In fact, I'll spell out in detail why I'm not going to cross-link you.

(1) I'm already at the top of the search services. Go ahead search for "CrimLaw" on Yahoo, Google, or Ask, I'll wait. Y'see, I'm already the first, non-bought link. If you search for "criminal law blog" I'm in the top 5 of each. It's not going to get any better than that. I'm only going to link to you if there's actually content of worth on your blog.

(2) You're blog is so obviously an advertisement that it might as well just be a link farm. Here are a few of the non-starters on "Most Superwonderful Jaywalking Attorney" blog.

a) 4 posts - You ask me to link with only 4 posts? Until I see three months of steady posting I don't believe you're going to be around a month from now. Some ad guy has talked you into this and you won't keep doing it long because you won't make any money from it.

b) A post a week - I can hear the ad guy selling it to you now: "Just post a small post each Friday afternoon, get people to cross-link you, and you'll be at the top of search engines and making tons of money in no time."

c) The phone number - THIS IS HOW YOU ABSOLUTELY ASSURE THAT I WILL NOT LINK TO YOU. I don't think there's anything you can do to make me less likely to link to your advertisement blog.

3) "Most Superwonderful Jaywalking Attorney" blog also has a few things that make it unlikely, but not impossible, to get me to link to you.

a) Putting the name of a certain type of law in the title. Some good blogs do this, but most "Jaywalking" style blogs are blatant ads and fade away after a short time. It takes passion to find something to talk about when you limit yourself to a single topic.If it's just an ad gimmick it isn't going to work.

b) Blogging only on one slim topic. This goes hand-in-hand with the (a) above. It can be done, but it takes dedication. You're going to have to be around for a while to prove you have it.

c) Pimping yourself - This doesn't guarantee that you won't get a link, but it comes mighty close. If you have that paragraph at the end of each of your posts trying to get a potential client to contact you I'm going to be put off. The only thing which might set it off is if the blog post which I just finished reading before I got to the pimping is really good. It can happen; it's just not likely.

So, as I said, I shan't be linking to "Most Superwonderful Jaywalking Attorney" blog anytime soon. And I won't be linking to yours if it's similar.

CrimLaw Timeline

It's down below the CLTV embed and includes CrimLaw, CLTV, and my Twitter account.

14 May 2008

Florida License for Virginia Living

I'm in Misdemeanor court when a guy is called before the bench on a charge which has something to do with his license. As part of the case, he pulls out his driver's license and hands it to the judge. It's a Florida driver's license, but it has, plain as day, a residence on it of 123 Kyle Busch Street, Shire, VIRGINIA. The judge looks at the license skeptically, but the guy keeps saying something about Florida giving "dual-residence" and the license being valid. Nobody buys it, but the case ends without the judge (who tries) convincing him he ought to get a Virginia license.

I go down to my office and spend a good portion of my lunch trying to figure this out. I look on Florida's DMV site, but it doesn't tell me anything helpful and doesn't even give me a number I can call for help. However, it does give me links to local offices and they have phone numbers. First, I try calling a couple bigger localities, figuring they probably have more people working and more experience with strange things. But, after hitting automatic answering machines, I realize this isn't going to work. Finally, I purposefully call a smaller office in Hardee County. Lo and behold, a live person answers and as a bonus he's polite and helpful (always the advantage of calling a smaller office instead of a big city one). I explain who I am and what I am checking out. He tells me he's never heard of such a thing, unless someone is in the military, but offers to let me speak to his supervisor. She gets on the phone and I explain it again. She doesn't know about this sort of thing either. Still, she's helpful as can be and gives me the number for the Tallahassee main office.

Next, I call Tallahassee. I get a customer service rep who helps me out a little, tells me she's heard something about this, and offers to link me up to an "analyst" who can help me further. I agree and she puts me on hold for about 10 minutes.

Then a man picks up the phone. I again explain to him that someone who lives in Pitcarin County Virginia, in the town of Shire, has a Florida license with a Virginia residence listed on it.

"Oh, sure, we do that."

Me, stunned and after picking my jaw up off the floor: "Ummm . . . Are there any limitations you place on this? After all, she has a house in Virginia."

"Not really. Some other States don't like it too much. And car rental places usually won't rent to people with this type of license. That's about it."

13 May 2008


New York is starting to test out pistol cameras. Here's a picture of one on a mock pistol.

Issues: (1) Officer Safety - Won't that throw off the balance of the pistol and screw up an officer's accuracy in a a life or death situation?

(2) Citizen Safety - Won't this encourage officers to draw their weapons so that they have video evidence of the events at a scene? And a drawn weapon, even if only meant to video the scene, increases the likelihood of something bad happening.

Suggestions: Build s small camera into headgear or to be placed on the shoulder (you know, where everybody used to keep the mike before earpieces became the way to go).

What is a Prosecutor's Function
(3) To Turn on Other Prosecutors

The duty to inform:
Standard 3-1.5 Duty to Respond to Misconduct

(a) Where a prosecutor knows that another person associated with the prosecutor's office is engaged in action, intends to act or refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters. If such policies are unavailing or do not exist, the prosecutor should ask the person to reconsider the action or inaction which is at issue if such a request is aptly timed to prevent such misconduct and is otherwise feasible. If such a request for reconsideration is unavailing, inapt or otherwise not feasible or if the seriousness of the matter so requires, the prosecutor should refer the matter to higher authority in the prosecutor's office, including, if warranted by the seriousness of the matter, referral to the chief prosecutor.

(b) If, despite the prosecutor's efforts in accordance with section (a), the chief prosecutor insists upon action, or a refusal to act, that is clearly a violation of law, the prosecutor may take further remedial action, including revealing the information necessary to remedy this violation to other appropriate government officials not in the prosecutor's office.
First, I have to point out what I can only assume is a grammatical error. Let's parse the language in subsection (a).
Where a prosecutor knows that another person associated with the prosecutor's office . . . refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters.
Hopefully, the policy for refusing to violate legal obligations will be increased pay and job security.

Okay, all goofing aside, this is the typical refutation of the "just following orders" excuse. These sorts of things usually aren't too prospectively useful. Let's be honest, when is the last time you heard of a junior assistant prosecutor turning in Chief Deputy Prosecutor Smith, prosecuting 23 years and heir apparent to the Big Job, into the Bar? It may happen, but it's not likely.

Still, my sense is that a rule like this should be in place to put people on notice. In some cases it may actually lead to some good, but mostly it's there let everyone know that "following orders" isn't going to be a workable defense. This, of course, is why the ABA's Model Ethics Rules have a generic requirement for everyone:
Rule 5.2 Responsibilities Of A Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
Strangely, Virginia did not adopt this section.
RULE 5.2 Responsibilities of a Subordinate Lawyer
ABA Model Rule not adopted.
I can understand why Virginia might be a little leery of this rule. The nightmare scenario would be a whole bunch of brand-spanking-new law school grads, full of idealism and lacking perspective, flooding the Bar with imagined or exceedingly minor "violations." Still, it does leave a hole. It leaves the "following orders" argument alive. If the Bar has not chosen to kill the "following orders" argument, what does that mean it expects from its younger members (whether in a prosecutor's office, PD office, or civil firm)?

12 May 2008

CLTV 26 - Fave 5 & Brady

Well, it's up. The First ten minutes are a fave five. The next ten minutes are a riff on Brady.

How to Make a Prosecutor Paranoid

It's a typical plea agreement, guilty plea. Defendant is first time felony offender and is going to get probation. I'm standing at my table and defense counsel is standing at his next to his client. Before the formal entry of the plea agreement the defense attorney walks up to the judge's bench to hand him some papers.

Defendant walks quickly over to me. I turn toward him. Defense attorney turns back around toward him. Bailiff perks up.

And, the defendant starts effusing thanks to me. He just keeps saying it over and over. Then he starts telling me how he's changed and none of this stuff is ever going to happen again. Then back to thanking me. All I can think to say is "I try to be fair" and "You're welcome." Finally, after a few minutes of this the defense attorney comes back and escorts his client back to the defense table.

I get paranoid. That guy is waaaaaaay too thankful for the deal he got. All I gave him is the probation the sentencing guidelines recommend. What have I missed? Have I given the Pitcairn County Axe Murderer probation by accident? I grab the file and start rereading everything. Defendant only has two misdemeanors on the NCIC. No prior felonies. No violence associated with the offense. He wasn't even rude to the officers involved. Nothing. There's nothing which should have triggered such a reaction. I announce ready when the judge asks.

Things continued per SOP after that. I still don't know what caused such glee over a felony conviction. Defense attorney said he didn't understand it either. I guess there are some mysteries in the universe we aren't supposed to figure out.

CLTV Coming Later Today

Sorry folks, but something is very, very wrong on my computer. All I can figure is that I downloaded the new divx codec and it, somehow, has screwed up my Premiere LE. Spent the morning fighting it, but finally gave up and am doing it now with Windows Movie Maker.

Uploading now, but will have to put it on blawg later today.

10 May 2008

Yes, I'm CuSS'ing

I spent the day converting CrimLaw from html tables to CSS. The claim is that it will make the blawg download faster. I can't tell a difference, but maybe it will help one of ya'll.

As to CSS itself, I'm not impressed. It struck me as just being a highly stylized, longer-winded, more formal way to do everything I'd already been doing in plain jane html. The only thing which provided even a little more flexibility was "float" and even that was limited. Of and by itself, it wasn't worth it.

Of course, I wouldn't want to tell that to the author of the book I bought to teach myself CSS. Parts of the book read like a proselytizing religious tract. Thou shalt not use tables or these commands. Thou shalt use blocks and those commands. The only two rational reasons given were the aforementioned increased speed of page loading and improving the ability of programs for the blind to read the page. I'm not too moved by either. I'm not seeing much greater speed - maybe a little, but the page design had to be dumbed down to fit within CSS's parameters (smaller video, removal of bar with credits in it, only one block for cites), so it should be faster. As for the problems with programs to read for blind people, that's a flaw in that program, not in html tables.

I suspect it's like most things. What evolved was messy. There are always people who don't like things messy. These people will put together something that is more formal, trading 50% of their flexibility for 5% improvement. Thus, when I was in high school and everyone was using Basic all the computer wonks were pushing Pascal as a "better" language. I guess some things never change.

As you might suspect by now, I got frustrated doing this today. I'm not satisfied by the blawg as is. Part of this, I'm sure, is that the book I used limited itself to basics (telling me to go buy this or that book for more advanced CSS applications) and I'm frustrated that I don't know the tricks which will allow me to do the things I want to in CSS. I'll learn and hopefully the layout will improve.

08 May 2008

What is a Prosecutor's Function? (2)

I've read more deeply into the ABA's document "Prosecution Function" and have come to the realization that I'm not going to waste the next month going over every bit of a document that spends a good bit of space stating the blindingly obvious, like "prosecutors prosecute" (3-1.2(a)); issues even more obvious ethical directives to prosecutors, such as don't prosecute a case if your Mom is the defense attorney (3-1.3(g)); and tries to issue directives to legislatures, like requiring prosecutors get paid at a level equal to the private Bar (3-2.3(e)).

Instead, I'm going to go through and point out some of the things that pop out at me as I read the document.

Let's start with the Public Statements section.
Standard 3-1.4(b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that [the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding].
Let me explain something to ya'll up at the ABA. I don't have the power to make "law enforcement personnel" do or not do anything. Most of the time we are working in the same direction and there isn't any conflict. However, if the Chief Constable of Pitcairn County decides to have a big, splashy press conference and announce to the entire world that his constables caught John Smith last night and that Smith confessed to being the Pitcairn County Axe-murderer, what exactly does the ABA think I can do about that?

Standard 3-2.3 Assuring High Standards of Professional Skill

(d) Special efforts should be made to recruit qualified women and members of minority groups for prosecutorial office.
Huh? How is that under the "Assuring High Standards" section? Neither gender nor being a member of a particular group means a person is more or less highly qualified. If you want prosecutors to be PC stick it under a social consciousness requirement.

Standard 3-2.8 Relations With the Courts and Bar

(e) . . . [A] prosecutor should assure defense counsel that if counsel finds it necessary to deliver physical items which may be relevant to a pending case or investigation to the prosecutor the prosecutor will not offer the fact of such delivery by defense counsel as evidence before a jury for purposes of establishing defense counsel's client's culpability.
No. Absolutely wrong. This rule codifies incestuous behavior; basically, it states that we lawyers will protect our own. If I somehow become a pertinent witness the defense attorney should call me; if the defense attorney becomes a pertinent witness I should call her.

Lets put a set of facts to this. There have been a series of axe murders in Pitcairn County. John Smith is caught, charged, and assigned Indigent Defense Attorney (IDA). John Smith goes to IDA's office to meet her on 02 June. On 03 June IDA comes to my office and hands me an axe. She refuses to discuss anything about the axe, but when it's tested there are blood traces matching 4 of the murder victims.

How do I even introduce the murder weapon without calling Defense Attorney? John Smith's new attorney, appointed after IDA was conflicted by becoming a witness, should limit my questions in front of the jury by a motion in limine, but I need to and should be allowed at least these three questions: 1. Was Mr. Smith your client? 2. Prior to 03 June, when and where had you met with Mr. Smith? 3. You gave this axe to me on 03 June? In this manner I establish a foundation for entering the axe into evidence based upon circumstantial evidence (without going near confidential conversations or work product, both protected by privilege). I can't lay that foundation without calling IDA.

So, rule or no rule, I'm calling that defense attorney.

07 May 2008

Disobey Me and It's Treason

A while back, the General Assembly made those of us who are "attorney[s] for the Commonwealth" into conservators of the peace. § 19.2-12. Yesterday I found out that this means if people don't obey me they can spend up to 30 days in jail.
§ 18.2-464. Failure to obey order of conservator of the peace.

If any person, being required by a conservator of the peace on view of a breach of the peace or other offense to bring before him the offender, refuse or neglect to obey the conservator of the peace, he shall be guilty of a Class 2 misdemeanor; and if the conservator of the peace declare himself or be known to be such to the person so refusing or neglecting, ignorance of his office shall not be pleaded as an excuse.
Cool. So, you come to me and tell me you saw John "the Pitcairn Axe-Murderer" Smith rob a bank and I tell you to bring John Smith before me. You, quite sensibly, refuse and get 30 days in jail. But wait, there's more.
§ 18.2-481. Treason defined; how proved and punished.

Treason shall consist only in:

. . .

(5) Resisting the execution of the laws under color of its authority.
One of the people I was discussing this with, a former Trooper now a defense attorney, described § 18.2-464 as the "Insta-Deputy" statute. Once I tell you to bring someone before me you are acting under color of the law's authority. When you resist the execution of my lawful order you are committing treason and that means you get 20 years to life in prison.

Wow. It's amazing what you find when you actually read the statutes.

What is a Prosecutor's Function?

Having stumbled over the ABA's multi-page explanation of a prosecutor's function, and never having heard of this before, I thought I might spend some time going over what is found therein. It's broken up into several sections and I think I'll try to handle one or two a day, starting from the beginning.
Standard 3-1.1 The Function of the Standards

These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of the prosecutor to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Hmmm, I think that translates as "These standards are not intended for use in evaluation of prosecutorial conduct, except when the conduct pertains to prosecutors."
Standard 3-1.2 The Function of the Prosecutor

(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
Well, that's it folks, we've solved the mystery of what a prosecutor's function is: a prosecutor prosecutes. No need to explore this any further - not that this stops them.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
So, first I'm somone who is court appointed to administer the Last Will and Testament of Justice - proof for all you defense attorneys that Justice is actually dead. Second I'm a gay newspaper?!? Somehow, I think I'm going to fail rather miserably in that function. Third, I'm a baliff. And, I'm supposed to combine all three disparate elements in order to "exercise sound discretion." Might be difficult.

(Sorry, the paragraphs above are all puff; I couldn't resist poking at them.)
(c) The duty of the prosecutor is to seek justice, not merely to convict.
So, I'm not supposed to get someone put in jail for 93 years for jaywalking? BTW, I think this is what I was looking for yesterday when I was looking in the Rule that has specifically been adopted for prosecutors in Virginia. However, I'm fairly certain that this document has not been adopted by Virginia.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.
That's just a wee bit broad. As I read that it could mean I have a duty to try to get all the minor, procedural hiccups written into the statutes by the General Assembly back in front of the General Assembly for correction (it could happen). It could also mean that if my personal belief is that all felonies should once again be punished by death, a la Tom, that I should be doing everything in my power to correct that injustice in the substantive law. "Errors" in substantive law are a matter of perspective and the formation of substantive areas of criminal law is a function of the legislature, not the prosecutor.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
I'm a little disturbed by the "professional traditions" part of this. Professional traditions are going to vary greatly from jurisdiction to jurisdiction. Things which are done in Pitcairn County as a matter of regular practice can be entirely different from those in Liberty City. There is no unified "professional tradition." It's reminiscent of the old thought that the "common law" across the various States was building to one point of congruence. It didn't happen. And when you start relying on the thought that congruence exists when it doesn't you then have to decide who's tradition is superior to others or if they are all equal. Just stick to the law and ethics rules.

As well, I'm not sure what this advisory council is. I'm pretty sure we don't have one of those for prosecutors in Virginia.

06 May 2008

Y'know, I Must Have Been in the World's Most Straight-Laced Fraternity

Nothing like this ever happened among the Brothers (thank goodness).

Do Justice?

I'm looking thru the prosecutorial responsibilities section of the Virginia and ABA Rules of Professional Conduct and I noticed one glaring omission.

There is no requirement to "Do Justice."

It's in the first comment explaining the Rule - both stating "[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." - but it's not actually a Rule itself. Interesting that it was left out.

Mind you, it might be in the gazillion other Rules the ABA is trying to foist on prosecutors, including the "Criminal Justice Section Standards on Prosecution Function" and the brand, spanking new "Standards on Prosecutorial Investigations."

I've only glanced at these extra ABA "standards", and do not believe they have been adopted in Virginia. I'm rather suspicious of the ABA's claim that
"Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense."
Really? Who? I've known a whole passel of actually practicing prosecutors and defense attorneys and, as best I remember, maybe two three were members of the ABA (generously, perhaps 1/2%). And when I say "member", I mean someone who pays dues and gets the magazine, not someone who goes to national meetings and spends time composing tomes as to what lawyers should be doing. How could an actual, practicing, in-court prosecutor or defense attorney have time to partake in the production of something like that?

05 May 2008


Why? Why would I post something like this?

Not sure. It's probably based on the same psychological issue which makes kids poke at hornet nests.


Defending People

Simple Justice

Simple Justice Part Duex

02 May 2008

Clearly a Woman of God

Asking that the mugger, who left her too hurt to live independently, not be sent to prison.

via SA

Contempt, Yahoo!'s Terms of Service, & Accidently Letting the Judge See a Stupid Joke

The Defense tries to introduce Yahoo!'s terms of service to Judge Smith. The judge refuses to allow it on technical reasons. Then someone - the secretary, the law partner, or the attorney trying the case - either makes a huge mistake or generates a fake document without the technical problems.

Judge Smith goes ballistic and makes the attorney bring Secretary and Law Partner to court. Next, the judge sends people to the attorney's office to disprove the lawyers' explanation.

Then the judge finds the lawyers in summary contempt. The lawyers get a second hearing in which they try to have an attorney to represent them, but the judge schedules it when the attorney cannot be present. Judge finds them again in summary contempt.

For good measure, the judge also finds the law student who was helping the lawyers in the case in contempt. He had gotten a document down from the interweb using the snarky name "smithisanazi."

All this, and an explanation that if there is enough evidence to convict double jeopardy cannot attach, found here.