25 September 2008

Virginia Supreme Court Decisions
(includes Spam decision)

Logan v. Commonwealth (No. 072342) 4th Amendment - Probation

A person on probation is charged with a crime. The charge is dismissed after the Virginia Court of Appeals, en banc, decided that the search violated the 4th Amendment. The Commonwealth did not appeal this (because, if you can't win in our Court of Appeals en banc you can't win anywhere). Then the Commonwealth filed a probation violation against the person. The trial judge allowed the evidence of the fruits of the search into the probation hearing. The Court of Appeals upheld the conviction stating that the 4th Amendment does not apply to probation hearings.

Held: The 4th Amendment does apply to probation hearings. Reversed.

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McMorris v. Commonwealth (No. 072247) Robbery - Principle in the Second Degree

Defendant took part in the mass beating of an individual. During the beating the individual's wallet was stolen. He was convicted by the trial judge of robbery because "This was all contemporaneous." The Court of Appeals refused to hear an appeal on the conviction stating that "the evidence established that McMorris shared the criminal intent of those who did steal Ottey's telephone and other items."

Held: Taking part in a mass beat down does not have as "a natural and probable consequence of the intended wrongful act" the intent to rob. Reversed.

There's a very good discussion in this case of what a principle in the second degree is in Virginia.

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Jaynes v. Commonwealth (No. 062388) Internet Spam - Jurisdiction - 1st Amendment - Standing - Trespass - Narrow Tailoring - Overbreadth - Narrow Construction

Out of State Defendant convicted of violating Virginia's anti-spam statute.

Held: (1) Jurisdiction is valid because all of AOL's servers are in Virginia and this is common knowledge.

(2) The Virginia Supreme Court quotes the Commonwealth's own stipulations during a prior argument before the federal supreme court and finds that Virginia cannot limit access to constitutional protections to fewer people than the federal government allows.

(3) While trespass may be a valid theory in a civil suit, it does not apply in a case involving the government because governments must answer to the 1st Amendment.

(4) The mere fact that someone sends an anonymous email cannot be illegal because anonymous political speech is protected political discourse. Unlike other States, Virginia has not limited this statute to commercial speech. Therefore, the statute is not sufficiently narrowly drawn.

(5) While mere overbreadth is not enough, this statute is substantially overbroad. It "would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For just being published today example, were the Federalist Papers via e-mail, that transmission by Publius would violate the statute."

(6) The Supreme Court refuses the Commonwealth's invitation to narrow the application of the statute so that it only applies if the internet service provider objects or the emails contain criminal activity, defamation, or obscenity. Rewriting a statute is the province of the General Assembly and mere construction of this statute cannot reach as far as the Commonwealth urges.


Wow. This case is a tour de force by the Virginia Supreme Court. It's 28 pages and not an inch of fluff in it (the federal supreme court would have wasted at least 75 pages on something like this). I don't like the result, but really can't argue with the reasoning.

22 September 2008

CLTV 41: Hubris, Heller, & Harvie (Wilkinson)

Reviewing a law review article by Judge Harvie Wilkinson (4th federal circuit) in which he equates Roe and Heller.

Larger version here at CLTV.

18 September 2008

RIAA to Court: That Bad Old Attorney Was Mean to Us!!!

How does the RIAA react to an attorney who defends people it charges and defeats it? And then has the gall to publish parts of the PUBLIC court file on his blog?

Why it sues him, of course. He's "vexatious."

In other words, he won and has made the RIAA look bad (like it needed any help).

You've got to be kidding me. Admittedly, I don't know all that much about federal civil procedure, but if I remember back to law school, aren't cases filed in bad faith supposed to be sanctionable? Couldn't an attorney filing a case in bad faith also end up with an ethics violation at his State Bar?

BTW, the attorney being sued is Ray Beckerman and his blog is "Recording Industry vs. The People."

16 September 2008

Review: Raising the Bar

Before this show hit the air there was a lot of buzz about it in the crimlaw blawgosphere because of the involvement of David Feige. Then the pilot aired. I didn't write a review at that time because I missed it when aired and had to watch it later. Additionally, when I finally watched it, the pilot was bad. It was very bad. All the important characters were ridiculous and the soap opera built into it was just silly. I decided to wait until I'd seen a few episodes (there's nothing else worth watching at that time period since Middleman went off the air) before I wrote a review.

It was the right thing to do. The show has gotten better. I still don't like the characters, but the story in episode 3 was far closer to the actual courthouse experience and actually came much closer to hitting home. It's still a very imperfect show. Nevertheless, it seems to be moving in the right direction. I'm going to give it a rating of cautious approval. Right now its an adequate show. It may turn into a very good show; it may still tank.

The Episodes

1: SKIP THIS EPISODE. It doesn't really set anything up that you need to watch the next two shows and it could sour you for the others. We see several rather obnoxious characters acting in obnoxious ways, often unnecessary for the plot. i.e. Why the scene between the head prosecutor and the female prosecutor?

The basic story here is a judge forcing a rape case to trial despite the prosecutor and defense attorney agreeing to plea agreement. There's a very bad id procedure undertaken by the detective. The prosecutor's office also hides the fact that it has evidence that the accused rapist is innocent. In the end one honest prosecutor brings that evidence to light and the accused's defense attorney goes to jail in order to keep his client from being unjustly punished.

2: There are two legal stories in this episode. In the first, the evil prosecutor tries to keep a witness who is from outside the country from getting into the country because the witness would prove the defendant not guilty. In the second, a black kid is accused of accused of battery of a white kid over a situation an upset girlfriend had selfishly set in motion. The second story was by far the better because it felt like a real trial.

3: This episode felt the most like what actually happens in court. Again, there are two legal stories. In the first we see a defense attorney desperately trying to find some sort of treatment program for his mentally ill client in order to avoid trial. The second is a trial over some sort of disorderly conduct/battery by a frustrated woman on a guard at a social services/unemployment agency. I'm sure the first story struck home with anyone who has fought a desperate, frustrating and ultimately fruitless battle to do something to help a mentally disturbed defendant. The second story started out strong but faded. I kept expecting the defendant to try to manipulate the situation to her advantage and refuse the solution offered by the defense counsel because it wouldn't get her out of jail. It would have been more realistic.


The Good: By episode 3 this has gotten far closer than I've seen anything get to how indigent defense works.

Concerns: I hope the background soap operas fade away. They are a distraction and do nothing to help the interesting parts. I fear they will actually become a greater part of the series, moving the series into a grittier version of LA Law.

The Bad: The series fails what I'm going to call the "My Cousin Vinny Test." If you've listened to the director's narration on My Cousin Vinny you've heard him explain that what he set out to do was to set up a situation wherein everyone was acting in good faith with honest belief.

No one in the PD's office is acting in bad faith. However, the same cannot be said of the judge or the prosecutor's office. An example of this is in the last episode's mentally ill storyline. A young prosecutor is concerned over whether he should prosecute the mentally infirm individual. The chief prosecutor basically tells him to suck it up and go convict the guy because it'll cause bad press and affect tourism if he does not. Really? Why couldn't the chief prosecutor give a more valid answer along the lines of "We don't have perfect tools. Our job is to protect the citizens of this city. If we can do that and help correct the defendant fine. If we cannot we must still protect the citizens, even if all we can do is just keep this guy put away where he can't harm anyone."? This underlying theme of bad faith hurts the stories.

The Characters:

Jerry is the primary protagonist. He is true believer, driven nearly mad by a system he sees as terribly flawed, and seems to get an inordinate number of innocent clients who are being ground under by an unjust justice system. So far not one of his clients was guilty. Not a single one.

In five years Jerry will be burnt out, or an alcoholic, or have left the office in disgust, or gone postal, or he'll be that guy who everyone in the Bar hates and avoids. In most cases a guy like Jerry hurts his clients because the judges stop listening to him and start punishing his clients just because they had the bad luck of having him appointed to represent him. However, in this series he is somehow successful.

Judge Kessler is venal, rude, self absorbed, and stoopid. Her main concern seems to be getting elected district attorney, not offending the voters or the judicial inquiry board, and making sure defendants (who are all guilty) go to prison for as much time as possible. We've all stood in front of judges whom we've given nicknames like "Hang-em High Harry", "Maximum Mike", or "No Chance Nader" these judges play the game well enough not to say things before even scheduling a sentencing hearing like "I warn you that I'm going to sentence your client to the maximum sentence." They just do it.

Oh, BTW, she's also having an affair with her clerk; said clerk is presented as calling all the real legal shots from behind the scenes - at least those which require any kind of thought or compassion.

The Gay Law Clerk - I can't even remember the name of this guy because he is imprinted in my mind with the title supra. He's sleeping with the judge and maneuvering to get her position on the bench after she becomes DA. He also seems to be the power behind the bench, steering the judge to her few sane moments. In his spare time he goes down to the local gay clubs and picks up random guys.

This has storyline disaster written all over it. It is the biggest threat to cause the soap opera to overwhelm the legal stories. There's already one guy he's slept with in position to blackmail him.

The Prosecutors.

The guy on the left is the honest, very talented, smart prosecutor. So far, he's been the one voicing ethical concerns and playing everything straight. I admit that I'm wondering how long that will last.

The gal in the middle was sleeping with Jerry in the first episode, but that all ended during the second episode when she went so far as to deport Jerry's witness because he was going to prove that Jerry's murder defendant was not guilty.

The guy on the right is the chief prosecutor. I don't think he's supposed to be the DA, but I'm not sure. He's a huge sexist, win-at-all-costs, evidence hiding, morally corrupt jerk. He hid the fact that there was evidence that the accused in episode 1 was not guilty of rape in order to protect a conviction and would have gotten away with it if the guy on the left hadn't know about it and passed the information along.

The Head PD. Not much to say about her so far. She's mostly just been filler so far and the object of the Rich Kid's lust.

The Rich Kid: His name is actually Richard and he is (or at least his father is) extremely wealthy. His legal stories have been the secondary stories. As such, there hasn't been as much license taken with them and they have come across closer to reality. I keep waiting to see defendants try to manipulate this guy. He just looks like the angst-driven, rich kid who they would decide they could manipulate because he doesn't have experience in their down and gritty world. He looks like low hanging fruit and it would be interesting to see him go through the experience of toughing up.

The Clients: So far, these may have been the most disappointing part of the show. They've all been grateful, cooperative, and friendly. In reality some defendants are like that. Others aren't. Where are the jailhouse lawyers with strange ideas who won't believe the attorney? Where are the guys who refuse to listen to advice? The ones who demand jury trials despite overwhelming evidence? The defendants who try to con the defense attorney with a bad story (or even out of his own money)? The ones who accuse the defense attorney of being on the side of the judge and prosecutor? The mothers, girlfriends, and others who blame the defense because the defendant gets convicted of a robbery he was videotaped doing (if we'd had a paid lawyer . . . ) Where's the guy who is so obviously trying to do things before and during his trial to set the defense attorney up for a habeas or Bar complaint?

15 September 2008

CLTV 40: Expungement and Innocence in Virginia

Taking the former discussion about innocence further, I discuss the expungement statute in Virginia and some bad case law which has strayed from the clear meaning of the statute.

Here it is in larger format over at CLTV.

14 September 2008

I Hate Explorer

Well, I wrote the page once and it worked with Opera, Firefox and even Chrome. Of course, it didn't work with Explorer. I don't know why. All I know is that I had to rewrite it in a different way to get it to work.

Hopefully, it's working well now. If anybody's having problems let me know.

Righteous Kill

5 Second Review: Fair to middlin'.

30 Second Review: Two veteran detectives find themselves under the microscope when someone starts killing any of their offenders who are not convicted. Two young detectives come in and start accusing one of the Vets of being the killer. Bedlam ensues.

2 Minute Review: Across the board, all the actors in this movie turn in excellent performances. However, the bait-and-switch is obvious and the end was obvious long before it came. I did not see exactly how the resolution would occur and something happens toward the end which is meant to be shocking, but was more perplexing than anything else. A character acts inconsistently with that character's prior actions and throws an extra, unnecessarily distracting element into what could have been a far more psychologically interesting ending. If you like these actors or this kind of movie go see it - if not save your pennies for another flick.

12 September 2008

What's That Mean?

I'm in the hall after a brief hearing in court. Defendant walks past me with his girlfriend and stops to ask me a question. I tell him twice that he shouldn't talk to to me and he needs to get a defense attorney to ask questions. He persists and I try a third time: "Look, I'm on the other side. Go talk to a defense attorney."

At which time, Girlfriend, who had walked on about 10 feet, whirls and says in a voice which could blister paint, "Don't talk to him!! You're paying for his kids' Christmas! We'll go talk to John Smith. His office is across the street."

Defendant looks embarrassed, tells me thanks, and turns, following Girlfriend out of the building.

As for me, I'm left standing there wondering how my (non-existent) kids are having their Christmas paid for by this guy.

11 September 2008

Paying for the Vacation

Why? Why do I take a vacation? I know what the week after will be like and yet I still take the vacation. Oh well, who needs to get home before 8 p.m.?

10 September 2008

Does This Make Me Poetry?

"Comes now the petitioner, Prose, and moves this court to . . ."

I feel like I ought to reply: "Comes now the respondent, Iambic Pentameter, and asks this court to . . . "

09 September 2008

CLTV 39: Football Bryan Station and Centre College (and Field Hockey)

Sports as I watched them over the last weekend. I traveled to go watch my High School, Bryan Station, play and my college, Centre, play their first home football games. Then I tripped over a field hockey game on Sunday before I left.

And everyone loves trains.

Here it is large over at CLTV.

07 September 2008

Rating Chrome

So, Google has put out a new browser: Chrome. I won't bother linking to it because if you've used Google in the last week you've had the link pushed at you. I've tried it and now I'm going to inflict my opinion on ya'll.

The Good

The browser is the fastest I've seen. Flash videos even seemed to load and run more quickly. One podcast I listen to even said it tests better than the upcoming version of Firefox. It's pulldown/right-click menus are better than Firefox's; they are laid out more along the lines of Opera's menus.

The Bad

It's a true Beta. I know that Google is infamous for abusing the Beta label, but this time they mean it. Weird things happened when I used cut and paste functions. At one point, I was happily opening a bunch of sites with videos and it rebooted my entire computer. Now, I had both Firefox and Opera chugging along in the background and I've not been able to reproduce it, but nothing else I was running had ever done that before.

The Ugly

Sometimes I think the fine people at Google take their obsession with simplicity too far. This browser is simple looking and simply ugly. Admittedly, I was mostly interested in seeing how fast it would run and testing basic functionality so I didn't look to see if there are alternative skins. Still, it looks like they went out of their way to make this look bad.


After a few bugs are worked out this is going to be the best browser out there. Of course, the others will raise their game as well so everyone will benefit (except maybe Explorer users - I'll believe Microsft can put out a good browser when I see one). For now, I'm sticking with Opera; my bookmarks are all set up with it and I've got everything tweaked the way I want it. It's not worth the hassle to switch to a browser which is still buggy and won't import my Opera bookmarks. However, you can bet money I'll be checking back on Chrome in a few months to see what it's like after the bugs are worked out.

05 September 2008

On the Road Again . . .

Just thank goodness you can't actually hear me singing the song. I'm traveling for the next couple days, so don't expect much in the way of posts.

First, I'm going to go watch my High School play it's first home game tonight in Lexington. Sadly, the team hasn't done well in umpteen years, but last week it beat Dunbar handily so maybe they've turned the corner.

And then I'm off to watch my college's first home game Saturday. I've no clue how well they'll do this year. You see, the problem is that our players actually have to go to class and don't get scholarships.

See you all soon!

Tagged - Even on Vacation

So, I check to see who has linked here and I see that Gideon has tagged me.
The rules are simple: name 5 blogs I read and tag 5 blawgers. Note the subtle difference: 5 blogs, not blawgs.
Ok here goes:
BNN Virginia - Aggregator of Virginia Political Blogs
Japundit - Because Japanese do some of the most interesting things
Gruntled Centre - Very bright former Prof of mine from Centre College
Spill - Audio and video movie review blog
Blogging Heads - Political video blog

5 blawgers tagged: Ubjeckshin, Blonde Justice, Seeking Justice, HOWT, & Matlock

03 September 2008

How You End Up With a Specialized Plate

So, you're at your local court clerk's office getting your license plate replaced. You see the picture of the special license plates up on the wall and it has your college on it; it's actually a fairly decent plate. Of course, there's a $25 charge for that specialized plate which you're not going to fork over.

The very nice lady who has been helping you fill out the paperwork (who is the local judge's wife) looks up and asks if you want any plate in particular. Showing some school pride, and figuring your school is 3 hours away and the nearest other alumnus is probably almost as far away, you say with a smile, "Not unless you've got a Centre plate." There's no way they'll have one of those laying around.

The Lady turns to a younger clerk, "Maggie, do we have a Centre plate?" Maggie hits the pile of plates next to her with Olympic speed and in 2.3 seconds - before you can quickly utter anything like "Don't worry about it" or "Just kidding" - she comes out of the pile with a Centre plate in hand. The clerks have been helpful, nice, and efficient. What do you do?

I bought the dang plate.

02 September 2008

Courthouse - Letcher County Kentucky

Even when I don't have to go and work at a courthouse I end up at one. I had some business today at the Letcher County Courthouse in Whitesburg, Kentucky.

Here's the road leading up to the courthouse.

Here's the courthouse.

Here's the entrance.

Here's the Memorial to those from the county who have died defending their country. The white board you see behind the statue has a placard for each lost son of the county. At the top of the board is an eagle and "Those who share the peace honor those who preserved it."

And, of course, as there is in every small town with a courthouse - The Courthouse Cafe. Ate lunch there and it was pretty dang good. Cheeseburger, fries, pie, and ice tea all for about $9.00. The place was pretty classy. Wooden chairs and tables along with an honest to goodness wood floor - all used enough to look like they'd been there for 50 years and belonged there for the next 50 (classy old always trumps classy new). The topper was when I opened the menu and they had a selection of wines, beers (from Kentucky, who knew?), and some really nice bourbons. You gotta love Kentucky because people know their bourbons - it even had Blantons.

The Clock

The Clock was the first masked hero/crime-fighter to ever appear in a comic book. In those days he wore a three piece suit and the above is a somewhat reimagined, modern version. There are a number of sources who think he is an inspiration for The Spirit. Whenever the Clock solved a crime he left a calling card behind which said:

01 September 2008

Blogging the Political

Dawgonit, yet another crimlaw blawg is falling into political mode. Well, there's only one real solution for this.