31 December 2008

For Auld Lang Syne.

1) The Most Read Post of '08: My review of "The Bluegrass Conspiracy": Every time I check stats someone has come to this site to read this post. It's possibly my second most read post ever (behind the Virginia Malicious Wounding post).

2) I Get a Tag Line: I am a "just a harmless, big, goofy, ballcap-wearing doofus who even likes dogs." (Read the comments)

3) Most Overblown Meme of 2008: Phil Telfeyan

4) Most Repeated Meme of All Time: Jury Nullification (and here too)

5) Ken Lammers' History of Blogging: 5 years of CrimLaw and the History of it All.

6) Really?!?: A guy I went to law school with ran for judge in Vegas.

7) The Month of No Posting: Illness leads to chest pains leads to hospital stay (not a heart problem)leads to work backup leads to 2 whole posts for November.

8) I try my hand at internet cartooning: CLtoon (1, 2, 3) goes on "extended hiatus" because I just can't be that creative.

9) I Get Angry: The Meth Solicitation.

10) Most Disappointing Judicial Opinion: Lycurgus Spins in His Grave

11) Language of the Blawg Changes: CuSSing

12) My College ROCKS!: Centre is ranked 13th compared to all the other schools in the entire country.

13) Basketball at my College & High School ROCKS!: 1, 2, 3, 4 Both Centre and Bryan Station made life fun as I watched Centre BB rise to rank #2 in DIII and Station rotate through the top three positions in Kentucky BB (they're both doing well this year too, but I haven't inflicted my enthusiasm on ya'll yet).

30 December 2008

Those Madcap Ohions

From 19 DUI's to chasing traffic in a cow suit.

Spanning the globe to bring you the constant variety of crime . . .

1) 'cuz nobody will lie if you ask them if they are healthy enough to drive.

2) If you are just now making a diving team to recover evidence dumped in rivers, because you have had years of informants telling you evidence has been dumped in rivers, won't there be 20 or 30 pistols when you dive to find the one dumped yesterday?

3) Guess what you have to do to disgust a pimp enough to turn you in.

4) Sheriff: Lower budget for me, less security for you.

5) Moonshine? In this day and age? Just a good 'ole boys . . .

6) Really? Really?1? The Secret Service is pining for the days when there were better counterfeiters?

BTW, a couple days ago I actually had somebody use one of those counterfeit checking pens on a $5 bill. A $5 bill. With the price of ink for printers it has got to be a money losing proposition to fake $5 bills.

7) Do not write you bank robbery note on the back of your paystub. It will not work out well for you.

8) And don't get in a domestic dispute when you have the stolen tires piled up in your home.

US Prosecuting Liberian Torturer

Son of a President; head of a paramilitary-antiterrorist group; torturer:
Witnesses described horrific torture techniques involving electric shocks, molten plastic, lit cigarettes, hot clothes irons, bayonets and even biting ants shoveled onto people's bodies. Prisoners were often kept in water-filled pits covered by heavy iron grates and barbed wire.
The prosecution is seeking 147 years.

His defense? Guess.

Utah Prison Population

Found in this article about a minority resource officer and his talking circles.

Illinois Driven Mad(d) & Increases DUI Penalties

Last time I heard a statistic, something like 60-70% of all DUI convicts never have another conviction. Punishments for those who go further range from stiff to harsh. So what does Illinois do? Requires all those thousands upon thousands of people who will never reoffend to get breathalizers for their vehicles.

Alabama & Executions

5 set for 2009.

Wanna Be a Judge? Better Get that Name on the Ballot.

Mardi Anne Levey, who was running for judge, had the temerity to want her name on the ballot. In fact, she went to court twice to get her name on the ballot. AND YET, THE CHIEF OF ELECTIONS REFUSED TO PUT THE CANDIDATE'S NAME ON THE BALLOT BECAUSE IT WAS TOO EXPENSIVE. That's right, Brenda Snipes, the elections chief, refused to put an actual candidate's name on the ballot; instead she concocted a scheme whereby people could vote for the judge who was leaving office and it would count as a vote for Ms. Levey. Not surprisingly, this was an epic fail:
"My own college roommate didn't vote for me because she said she didn't see my name on her ballot"
As I am sure all of us are shocked to find out, Ms. Levey's hopes of being elected Circuit Judge were dashed.

Look, I don't know if Ms. Levey's chances of actually getting elected were high or low. However, there is one thing I do know: if your name isn't on the ballot - no matter what convoluted, cock-eyed, money-saving scheme causes it not to be there - it's dang hard to win an election. I hope she wins her civil suit.

29 December 2008

Is "Tubes" Stevens' Conviction Falling Apart?

The good Senator has caught 2 breaks. First, an FBI agent blows a whistle on the FBI and prosecution:
The complaint had sharp words about one supervising agent, accused of getting too close to sources, including Allen. It said agents took gifts and accepted favors from sources and revealed confidential grand jury information and investigative practices to sources and reporters.

And the complaint said that prosecutors deliberately withheld and covered up evidence favorable to Stevens during his month-long trial, contradicting their statements to the judge at the time that their errors in not producing material to Stevens were accidental.
As well, Anderson is saying there was an agreement for immunization again:
David Anderson, the government witness at the center of the storm involving ex-state Sen. Jerry Ward and allegations of misconduct in U.S. Sen. Ted Stevens' trial, has written a new letter to the judge in the Stevens case asserting again that prosecutors promised him and his friends immunity.
Still, not everything is going Tubes' way. The Alaska Bar is trying to take his license.

I'd Be Scared of Spying on the Klan Too

Of course, I might not write a book about it or give an interview to a newspaper or give a general description of where I live.

Turtle Man of Kentucky

This guy is nuts. I fished when I was younger and encountered a few snappers before; they are the nastiest, meanest critters I have ever met. Catching them barehanded is just asking to lose a finger or two.

Here's a video of the Turtle Man hunting:

Note at 2:15 he talks about luring snapping turtles in to bite his fingers. AT 4:20 he catches one. At 4:50 notice how the turtle is trying to bend its neck to bite anything it can get. Then they demonstrate how quickly the little monster strikes.

Rugby, a Thugs' Game Played by Gentlemen . . .

Soccer, a gentlemen's game played by . . .

Accused Jail Rapes Unprosecutable

And the judge is mad. He basically stated the facts the woman alleged are true, despite an internal prison finding to the contrary, before he dismissed the case because the statute of limitations had passed.

28 December 2008

Is Inglewood a Shoot First Ask Questions Later Jurisdiction?

Okay, the LA Times doesn't have the kind of reputation which would make you think it the most unbiased when reporting potential police abuse, but this gives me pause:
To investigate shootings by police, the department has assigned the vice president of the Inglewood police officers' union, which advocates for officers accused of wrongdoing, and a detective accused by a prosecutor of lying about his own off-duty shooting.
There's more.

Civilians Working to Improve the System

. . .

The gentlemen on the left are in New Orleans. The lady on the right is in Charlottte.

And the Texan of the Year is . . .

. . . Prosecutor Craig Watkins.

And then there's this stuff

1) The lawyer of the unpronounceable governor, Ed Genson, has upset people by trying to get people subpoenaed for the impeachment hearings whom the feds don't want to testify yet.

2) With everybody running way over budget (Virginia is somewhere between 2.9-3.5 billion) even laudable programs are getting the axe: juvenile programs.

3) Apparently, it's not obscene in Louisiana to send a picture of a penis to a 17 year old member of the gospel choir you run.

4) I thought everybody watches CSI (at least everybody on my juries). However, this burglar apparently didn't know DNA could be found in the spit from his chaw.

5) Really? Burning the truck of the officer who wrote you a ticket? Did you think that would turn out well?

6) He took some peanut butter and smeared it across a fellow student's forehead. Here's why he got 4 days.

7) "The smugglers even kept the immigrants' shoes to prevent them from escaping."

8) Elaborate, fake-kidnapping ruse for a robbery of a Hardee's: epic fail.

9) Everybody's favorite Arizona sheriff, Joe Arpaio, now has a TV reality show.

27 December 2008

Hurricane Hector Winds Down

After a day and half of chewing up everything he could get his mouth on, terrifying my 90 pound labrador retriever, and learning not to do the same thing to my 15 pound cat (much hissing and a couple near miss nose-swipes), Hector finally runs out of energy.

Hector btw was named not after Priam's son, but after the verb. He spent a solid day plus hectoring my poor lab.

Caught Shoplifting - Pictures Will Be Put Online

As I've said before, I don't have a lot of problem shaming people as deterence for things like shoplifting. However, I wonder how many of them will actually be affected by having their face put on the police department's web page?

There Are Many Ways to Try to Get an Ex Back

but pretending you had his child and it has been kidnapped - not the optimal solution.

The Governor With the Unpronounceable Name's Brother Hires a Lawyer

Being in Nashville may not be enough to keep him out of Illinois trouble.

Normally, I Don't Condone Jail Breaks . . .

. . . but i might make an exception if she needs a place to hide out.

Shoplifting Dog

Video Courtesy of KSL.com

Yeesh! All We Have to Worry About is Miranda

Not yet heard of a US officer threatening to throw a recalcitrant witness to the (literal) lions.

26 December 2008

Catwoman Dies

Eartha Kitt, who had success far beyond just being the Catwoman of season 3, has passed over.

What the?!? Duquesne Law School Punished After Success by University President Charles J. Dougherty

What happens to the Dean if "Bar scores are up [passage rates improve in 3 years from 68% to 97%]. The moot court team won national titles. Alumni giving is up. The research and writing program was nationally ranked. Faculty scholarship is up."

Well, if you are retired Rear Admiral Donald Guter, it gets you fired by University President Charles Dougherty.

Yes, I know it's not a crime, but it is unconscionable. US News has Duquesne Law School ranked in the 4th tier. From all appearances, Admiral Guter was moving things in the right direction. He should have gotten recognition and raises, not the boot.

University President Dougherty is responsible for the loss of reputation to Duquesne Law School that comes from such an arbitrary firing (the article makes it seem to actually be a power play of some sort). Hopefully, for the students at Duquesne the improvements will remain despite the firing of Dean Guter. One can only hope.

via Concurring Opinions

Round and About

1) DNA Fearmongering.

2) "U.S. District Judge Danny Reeves ruled that the public release of an FBI affidavit doesn't warrant dismissal of the charges, even though he acknowledged "the possibility" that grand jurors "may have been prejudiced" by the news reports it generated."

3) Here's a nightmare. An 8 year old commits murder which is clearly premeditated. What can you possibly do?

4) It's not legal to sneak mummified critters out of Egypt. Have fun in that Egyptian jail.

5) Al Capone's house is for sale for a mere $450,000.

6) ummm . . . Breaking into someone's house, finding your way to their bedroom, and going to sleep in your skivvies is frowned upon.

The Drug Dealers Always Have Hot Girlfriends

At least for a while - then comes the arrests and abuse and after awhile . . . not so much.

20 December 2008

Little Ole Mean Anti-Intellectual Me

Yep, sadly that must be who I am. So sayeth a lawprof (via Simple Justice, via Feminist Law Professors, in reaction to a public defender). And, of course, there are no indications that I've continued to value the ability to think. None. Not a one.

What a load of bunk.

Sure, I have to more practical about it now, but I value my ability to think and discuss ideas and ideals with others. If anything, law school was the beginning of the limitations on my intellectualism. My undergrad experience at Centre was amazingly good. There's a reason Forbes ranked Centre 13th among all the colleges/universities in the United States (ahead of MIT, Stanford, Brown, Smith etc. - I've already crowed insufferably about this here). My senior year I was translating and comparing passages from the Quran and the Hebrew Testament (published in a school journal). Classes which stick out in my mind are Ancient Greek, History of Western Religion, 2 "Classics" courses (roughly, one class on the ancient world and one on European culture), and a particularly enjoyable advanced sociology course about the construction of "modernism" and "post-modernism." I've been a few places around the world and done a few things, but as for pure intellectual pursuit nothing so far has surpassed my time at Centre.

Then came law school. We were supposed to read a book before arriving. I did what I would have for a class at Centre. I dissected the book, pinned it down, and examined every theory in it. I had the major theme down pat; I had the secondary theme down pat; I had the chapters' themes all laid out. My law school roommates freaked out a little when they saw this because they had barely skimmed the book - the guy from Morehouse (another school which deserves its rep - I've personally never met a Morehouse graduate who did not impress me) actually went back and did more work on it because of me. Then, during orientation, we got split up into groups and went to classrooms with a professor to discuss the book. The professor in my group did what seemed like a 7 hour riff on the title of the book. Didn't discuss a single theme in the book - not one. It was painfully obvious that he hadn't read and didn't have anything more than an extremely shallow understanding of it. Welcome to law school.

Then there was the day in my first semester that my extremely well respected contracts professor proclaimed to us that the conjunctive "and" is the same as the disjunctive "or." He proclaimed it as a doctrine of interpretation and that was that. No discussion of the conditions when this might be true (scrivener's error or inclusive disjunctions) - it just was. Anyway, it was about this time that I realized that (1) they really weren't trying to help us think, they were teaching us to blindly ape what we were told, (2) the amount of education we were getting was staggeringly small (the convention of having a professor discuss one case with one student for one hour to get the one pertinent sentence out of the case condenses a couple weeks of education into a semester), and (3) the only thing law school taught people to be was law professors. And that malarky about teaching students to "think like lawyers" was about the purest line of BS I've ever heard. I could think when I got to law school; I needed to be taught the tools and conventions for applying those thoughts in the practice of law and during my 1 year of education (compressed into three years of law school) teaching along those lines was pretty skimpy.

So, I joined the rugby club and gave law school the requisite amount of attention it deserved after that. Sadly, once I started ignoring the professors, skipping the worst classes, and reading the black-letter law books from the book store rather than the actual text books my grades went up (the only class this backfired in was a seminar on estate taxes wherein I made the mistake of picking up a couple books from the library on the subject which used the same terms to mean different things from the approved text book and argued different theories and got me so screwed up that I still don't know how I passed that class). Then I graduated, learned more law through self study (Micro-Mash) than I had at law school, passed the Bar, and began to learn the tools and conventions of practice by observing and actually participating in court and trials.


BTW: I have been purposefully not putting my law school's name in this post because I don't want them to turn up in a google search and it appears that my law school has been taking steps to greatly improve itself. As well, talking to other practicing lawyers I get the same opinion from just about all of them about their schools as well so it would be unfair to single my school out.

19 December 2008

And the New Private Judicial Review Process Starts to Come Off the Rails

They set up the system. They sent out the forms to get lawyers to review the judges. They swore it would all be private, confidential, have no names attached, and never see the light of a public viewing.

And now, members of the General Assembly weigh in:
But lawmakers aren't sure the system is worth the strings that came attached: a strict order to keep the evaluations confidential.

Releasing the evaluations to the public is prohibited. That doesn't sit well with some.

"I've got the Supreme Court saying I can't do it and I'd be in contempt of court, and I've got my own personal commitment of being an elected member to my constituents that I feel I have a constitutional duty to share the information with," said Del. David Albo, R-Fairfax, at a meeting with court representatives and members of the House and Senate courts committees.

House Majority Leader Morgan Griffith, R-Salem, questioned whether the evaluations would be exempt from the state Freedom of Information Act.

"Because it's a part of the public process of re-election, that's why I don't believe that any personnel exemption would apply," he said.

In other words, the Supreme Court may have issued an unenforceable order.
And, even if the Supreme Court's order holds up publicly, might there not be untraceable leaks?

When this came about, I balked. First of all, the smaller the jurisdiction the less likely to produce truthful replies. After all, in the many rural jurisdictions in Virginia wherein there are 3-5 attorneys in the whole county (or less) and everybody knows everybody, the judge is going to have a good shot at finding out who said what about him. If the judge has a terrible, tyrannical god-complex while on the bench, but is a swell guy when he goes before the General Assembly, the young idealistic attorney who told the truth is going to be in a heap of trouble when the General Assembly votes the judge back into office.

On the other hand, in jurisdictions where lawyers feel there is a sufficient number of attorneys that they won't be identifiable or don't care because there are 8 judges and you only appear in front of the bad one every 6 months or so, my concern shifts. I'm more worried about cherry picking. Let's assume 200 evaluations are submitted: 160 basically say Judge Smith is average, 20 say he is spectacular (the guys who graduated with him 20 years ago from W&L), and 20 say he is the Devil incarnate (the Jaywalking Defense specialists who think he is biased because of his 75% conviction rate). If there is a heated battle in the General Assembly over who is going to be seated next in this judicial circuit I foresee these letters being used as weapons on both sides, with everyone using the parts most favorable to their position and ignoring any trend in the entirety of the evaluations.

The Supreme Court is trying to stop this, but I have to say that I think the General Assembly is going to win if a showdown comes. After all, it writes the laws.

18 December 2008

How Will Budget Cuts Affect Virginia Criminal Punishment Systems?

I reported before that Virginia's budget shortfall looked like it was going to reach $3-3.5 billion. The Times-Dispatch is giving a lower estimated deficit at only $2.9 billion. Governor Kaine has made his proposal to the General Assembly as to what cuts should be made. Here's the part which pertains to the criminal justice system:
Kaine also outlined a policy change to save money by reducing the prison population -- specifically, by not jailing people for minor technical violations of parole, and by allowing inmates convicted of nonviolent crimes to be released up to 90 days early.
. . .
Kaine's latest proposed round of cuts -- the fourth since 2007 -- would:
• cut budgets for the Virginia State Police, local police, local sheriff's offices and commonwealth's attorneys offices by 7 percent;
. . .
Republicans also questioned Kaine's proposed policy change to let nonviolent prisoners out up to 90 days early, which would save an estimated $5 million a year. Currently the director of the Department of Corrections can authorize release up to 30 days early.

"One of the advances of the last 13 years was the abolition of parole," said Sen. Ken Cuccinelli, R-Fairfax, one of three GOP lawmakers seeking the party's nomination to run for attorney general.

"This breaks with the public trust."
My questions are two-fold:

1. What are "minor technical violations of parole?"

First, we don't have parole in Virginia (unless your conviction was prior to 1995). We have probation violations. Yeah, I know: picky, picky, picky . . . Still, if the governor only plans to affect people on parole it's going to be a pretty small number.

I realize there may be a number of small probation violations which could fall under this denomination. However, it's been my experience that probation officers don't usually bring people to court for their first minor violation, or even their second - quite possibly even the third. Part of this is giving people enough rope to hang themselves. Part of it (at least where I am at) seems to be sympathy and an actual desire to try to help people. Part of it is that judges will not look favorably upon efforts to bring every little piddly thing into court. There is usually a string of minor violations which come to the point that they are cumulatively at least a mid-level probation violation.

I'm just going to assume that the "technical" part of "minor technical violations of parole" is just a fudge word. The definition of "technical violation" is going to vary from person to person and place to place. Is it a technical violation if the probationer never checks in with the probation office and avoids the attempts of the probation officers to contact him? How about if the probationer refuses to pay his restitution? His fines and costs? If he fails a drug test? Two? Three? Six? In the end "technical" just means that whoever makes the decision can draw the line concerning minor probation violations wherever he wants to.

2. I'm also curious as to what the 90 days will affect. Anyone who does any work in Virginia courts can tell you that it can be pretty hard to get more than 90 days incarceration. Since misdemeanor sentences are halved (50% of sentenced time is served) a defendant actually has to have been sentenced to 6 months in jail to serve a 90 day sentence. Go visit your local Virginia District Court on the day of its busiest criminal docket. Watch to see how many actually get 6 months. It ain't going to be a large portion of the defendants. I just can't picture all the jail populations shrinking to 10-15 guys who were the very few who got more than 6 months on a misdemeanor.

As for lower felonies, most simple felonies (drug possession, larceny, destruction of property, forgery) already require that the defendant have at least a prior conviction or two (or many simultaneous convictions) before Virginia's sentencing guidelines require more than probation. Those who do have the priors to get time serve 85% of that time. So, if my math is right, a defendant must get more than 105 days - 3 1/2 months - or she would take a trip to the jail and be released for having 90 days or less to serve.

I just don't see things actually working that way. If anybody has an idea how this is actually planned to work out drop me a line.

17 December 2008

Even More On Fake Probable Cause:
Challenging My Statutory Reading

Previous Posts:
Police Faked With False Grow House
What Crime in Faking Probable Cause?
More on the Faking Probable Cause in Texas

(3) How disingenuous of you, you cherry-pick a block of text from "section 37.9" that APPEARS to give credence to your bizarro world position that a non-crime could be prosecuted. But if one goes to that section of the law, one finds that the section you quote actually applies to a crime actually having first been commited. Your choice to selectively misread the law to fit your fantasy of putting someone in jail because cops are stupid and easily mislead to a non-crime aside, your selective reading actually says nothing like you want it to say. What it is actually about is changing evidence that would prove a crime had been committed to attempt to cover the actual crime. With no superimposed actual crime, simply constructing a situation that some idiot cops misread as criminal activity is not, by itself, a crime.

(4) Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if, with specific intent to commit an offense

Another intentional misread to support your fantasy. No intent to commit a crime was involved, so no offense occured. The rest of you intentional misleading "read" is moot.
Ooh! Cool, a challenge!

Did I cherry pick a block of text from 37.09? Well, I picked the block of text which I thought applicable. I even discussed how I wasn't sure how the statute applied because of some of the language under 37.09(a). However, one thing I'm absolutely sure of is that the statute does not require an offense to have been committed. How do I know this? Primarily because I know Texas has applied this statute to cases wherein there has been no offense committed.

In Waldrop v. the State, 2007 (no. 06-06-00073-CR, Court of Appeals of Texas, Texarkana), a woman was convicted of feeding her children a story about their father sexually abusing them and then having them repeat the story while she recorded them. The children told the police what their mother made them do and the story was proven false. No underlying offense here. Father didn't do anything. Mom's crime was the making and presenting of the false evidence. There was no crime until she did this and violated 37.09.

This case also seems to settle my question as to whether this statute can be applied if it is done prior to an investigation. The mother created the evidence first and then presented it to start the investigation. Although, the case does limit its discussion to "presentment" and I guess once you've contacted the officers you've started the investigation so presenting them with the tape happened during the investigation.

In Delapaz v. the State, 2007 (no. 05-05-00660-CR, Court of Appeals of Texas, Dallas), a police officer was convicted under 37.09 because he made false statements on affidavits to get search warrants. Again, there is no commission of a crime prior to the officer making and presenting the false affidavits.

(Sorry I couldn't link directly to the cases; I can't find them except through a pay service)

So, it's clear that no crime need be committed. Whence comes the confusion? Well, as best I can figure, it's based in 37.09(d):
(d) A person commits an offense if the person:

(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense
The problem is that this has no bearing on 37.09(a) whatsoever. Admittedly, I had to read it a time or two before I caught the difference, but (a) and (d) lay out entirely different crimes. 37.09(d) happens without an investigation or hearing; it makes illegal the mere act of destroying etc. any evidence at any time prior to an investigation. 37.09(a) criminalizes acts that take place once the authorities have become involved. As Waldrop demonstrates, it also has the purpose of punishing those who create evidence out of whole cloth when no offense has occurred.

As for the possibility of an attempt charge, if the intent was to present physical evidence of a marijuana grow house to the police, knowing it to be a false marijuana grow house, with the intent to affect the police investigation or - as proclaimed - to affect a different trial, then the attempt is there. In fact, the attempt may be the stronger case because the "kopbusters" claimed it was trying to affect another trial's result. That case is probably closed so it cannot be affected (making the charge actual unconvictable). However, that does not mean they didn't attempt it.

Mexico's Drug War

An interesting site and (interactive map) about drugs and Mexico.

More on the Faking Probable Cause in Texas

Previous Posts:
Police Faked With False Grow House
What Crime in Faking Probable Cause?

(1) "So, is it illegal to make it appear *I* may have committed a crime to expose the crimes of another? Maybe the laws you cited were meant to keep people from "framing" others so those others are not falsely arrested or convicted? Wouldn't this be similar to where the police pretend to sell stolen property to catch a potential thief?"

(2) "There would be no attempt to commit the crime of growing marijuana because the Kopbusters were only attempting to grow Christmas trees?"
Let's answer #2 first: Nope, can't charge someone with attempting something they didn't attempt.

On to the questions in #1: It's not really a crime to make it appear as if you have broken the law unless you are doing it "with intent to affect the course or outcome of the investigation or official proceeding." This probably means that the statute only applies if you do it in a manner meant to mislead officers or a court. Technically, police pretending to sell stolen property to a fence could fall under this statute, because it is meant to influence a court, but it will never be prosecuted. The statute may be broad enough to encompass that behavior, but what prosecutor is going to decide that's the intent the State legislature had when it passed the statute? Finally, the purpose of the statute could be several things. I think the anti-framing purpose is pretty clear. As well, the statute's intent is probably to keep someone from manufacturing evidence that would deceive others into thinking she was not guilty. Finally, the statute means to keep law enforcement from wasting time and resources.

Look for another post about this subject at about 1:30 pm.

16 December 2008

Ask MetaFilter

For those coming from Ask MetaFilter: if you are looking for some of my best stories go down to the bottom of the left column under "Back When I was a Defense Attorney."

15 December 2008

Cutting Prosecutorial Budgets to the Bone

Some of you might have noticed that there seems to be a little bit of economic difficulty in the world at this moment. State governments are reeling from the effects of all this. Where I work (in Virginia), the Commonwealth is retightening its belt because of "the growing shortfall, saying it could balloon an additional $1 billion or $1.5 billion, beyond the $2 billion gap that forced cuts earlier this year." However, it doesn't appear that Virginia is doing anything nearly as bad as the Commonwealth just over the border: Kentucky.

Kentucky is facing a $456 million dollar budget shortfall and it's slashing everywhere. Bluegrass Politics reports that prosecutorial offices across the Commonwealth will have to cut 4% out of their budgets by the end of the fiscal year. They are going to have to choose between three options by 01 January 2009: short term lay-offs for everyone in the office, long-term layoffs for select members of the office, or salary reductions. The short-term layoffs are being labeled "furloughs" and require each and every member of the office to take 3 weeks unpaid leave with the office having the choice of just closing for 3 weeks or staggering people so that the office is merely understaffed.

The Mountain Eagle, a prominent local paper in Eastern Kentucky, laid out the cuts a little more precisely. Commonwealth Attorney offices have three options: cut staff salaries 14-16%, one week "furloughs" (up to three weeks), or firing people (which is being characterized as "laying off"). The Eagle spoke to a Commonwealth Attorney who filled in some of the blanks. He is going to have to go with the furloughs because he has to do everything he can to keep hold of his staff. Before any of this his employees had already had their salaries cut by 4% as of 01 July 08, had been denied their usual raise of 3-5%, and had their health insurance premiums increased (added to another 4% cut over 4 months it works out to about a 25% loss in pay from employees who all earn less than $25,000). If any of his employees quit, retire, or take unemployment he loses them permanently and in an office with 2 part-time and 2 full-time employees that's a massive loss. Another interesting point is that the Commonwealth Attorney says the governor is not allowing staggered furloughs (although their length can be lessened if the Commonwealth Attorney can find money somewhere else). This means that if the furloughs go forward the Commonwealth Attorney himself will be the only person available for anything that goes on, no matter how many courts are running.

The article should be available here as of 24 December 08 - under 10 December 2008.

Yeesh. I grew up in Kentucky, and, since it will always be "home", the draw to return has been strong at times. And yet, there are times I am so glad that I am tied to Virginia by that bar exam. If there'd been reciprocity I might be somewhere around Lexington wondering if I was going to have a job much longer.

14 December 2008

In Case Anybody Missed It

Simple Justice has passed 2,000 posts.

How he does 2-6 substantive posts a day is beyond me, but he does it almost every day. It's worked out well for him, as he apparently now has about a gazillion readers. Take note, all you money-grubbing advertiser bloggers that Scott has so lovingly encouraged over time: if you really want to draw people to you through a blog, this is what you need to do. Good luck.

Congratulations Scott. May the next 2,000 be as productive as the last.

What Crime in Faking Probable Cause?

Last Monday I started the week with a post about the people who set up the fake grow house to ensnare the police. In it I commented about the police taking pictures of the shirt and poster left in the house telling them that they were being scammed: "evidence for whatever Texas' statute they will eventually prosecute these people under." Today, a commenter asks a valid question:
Ok, when is it a crime to "create probable cause"?
Okay, I'll give it a shot. First of all, let me give the normal cautionary admonishments:

I AM NOT A TEXAS ATTORNEY. I have not read case law from Texas and have never appeared before a Texas court. Therefore, this is a lay opinion, not a legal opinion. Citing me to a Texas judge would probably carry about as much weight as citing Bob, your mechanic, and maybe less, 'cuz Bob lives in Texas and votes for your judge when elections roll around.

Now that the preliminaries are out of the way, looking at the Texas statutes, I see two possible charges. The first is
Sec. 37.08. FALSE REPORT TO PEACE OFFICER OR LAW ENFORCEMENT EMPLOYEE. (a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1) a peace officer conducting the investigation; or
(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.
(c) An offense under this section is a Class B misdemeanor.
This would apply to the anonymous phone call which was made to start the ball rolling.

The second is
Sec. 37.09. TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE. (a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
. . .
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.
. . .
(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree.
This would apply to the entire setup.

Obviously, the false report is the stronger charge. It requires a false statement material to a criminal investigation, but does not limit when the investigation may begin. If the investigation begins because of the false statement it's material (BTW, this is the way that Virginia's Filing a False Report statute works as well).

On the other hand, the fabricating physical evidence evidence charge requires reading some case law to clarify. It would depend upon how the courts interpret "pending investigation." In particular, in a time when there are Drug Investigation Units everywhere, is there a continuos, ongoing investigation of drug growth, distribution and use? If so, there's a felony. In fact, this statute might also apply because the proclaimed reason for the falsified evidence was to influence the result of another drug trial. Of course, the catch is that the other drug trial is over. Even if either of those two theories do not apply, there could be a charge of attempt to fabricate evidence:
Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
. . .
(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.
Heck, according to subsection (c) you could charge the attempt right along with the offense itself.

Those are the possibilities that pop out at me. Someone with experience in Texas crimlaw could probably think of more (or maybe tell me that I'm full of malarky). If anyone's out there with a more nuanced understanding of Texas law please feel free to fill in the gaps.

11 December 2008

Today's Tawdries

1) Who me? No, ah, no, I mean - You can't possibly believe that I offered the Governor with the unpronounceable name a bribe for Obama's seat. Not me. Nope. Never happened. *These aren't the droids you're looking for*

2) Specifically going to a school, hunting down the school resource officer who gave you a ticket for parking in the bus lane, screaming obscenities at him, calling him a racist, and threatening to kick him in the groin isn't disorderly conduct.

3) Two guys break into a house. One of them is shot dead by the home owner. The other is convicted of reckless homicide. Now, that's creative prosecution.

4) Who knew? Apparently, Virginia has been combing through old cases trying to prove people not guilty of that which they were convicted. And now "volunteer lawyers" are to notify inmates of "potential DNA evidence."

5) "Are Blagojevich tapes enough evidence to convict?" You're kidding. You've got to be kidding. Please tell me you're kidding.

6) Forget about the governor with the unpronounceable name. The Kentucky Governor is sending out illegal Christmas cards!!!

7) The yearly, stock story about how Texas and Virginia have the most executions. I think they just dust off the story, change a couple numbers and dates and send it to the printer.

8) Want to see how truly boring court can be? "Bond Denied for Sex Offender"

10 December 2008

This is How a Tazer is Supposed to be Used

As anyone who has read this blawg for a while knows, I am skeptical of some of the ways officers are told to use tazers (no matter how hard the company sells them as such, they are not a replacement for cs spray). However, there clearly situations wherein tazers save the life of someone.

Here's an officer using the tazer in exactly the way it should be used.

09 December 2008

Illinois Governor Tries to Sell Obama's Senate Seat

In a release, Patrick Fitzgerald, the prosecutor, said Mr. Blagojevich "put a for sale sign on the naming of a United States Senator."

Now that's chutzpah.

Oh, he also sold other governmental seats and denied financial aid to the Tribune Company unless they fired editors who had criticized him.

Good gracious Mark, what are you Yankees up to?

Around and About

1) A new way of getting fingerprints, even after they've been wiped off.

2) Trying hard to get a lump of coal for Christmas.

3) Speaking of Christmas, the annual rise in crime is here.

4) If someone spills hot chocolate on you watch your wallet.

5) A priest runs down the guy stealing the poor box.

6) The Brits are arguing over whether to put juvenile delinquents in Institutions or academies.

7) If you can't stop gang leaders by imprisoning the you can always sue.

8) 165 Nigerian women in British prisons.

08 December 2008

Police Faked With False Grow House

via Sleepless in Midland

In Odessa, Texas, a group calling itself "Kopbusters" builds a grow house - complete in every detail needed to grow marijuana. Then they put fir saplings in it instead and turn it on, waiting for police to respond. They did.
Odessa Texas, The police that Barry once worked with kicked down the door to a fake grow house where their attorney was handcuffed, later to be released.

. . .

They busted the cops by making a fake grow room that pumped out a lot of heat and waited.

The cops, instead of doing what they should have done, went straight for a search warrant and kicked the door in.

Why'd they do this? Because, somehow, making the police look foolish is going to get another case, wherein a woman was found guilty of dealing pot, re-opened. I'm not sure how that's supposed to happen, but that's their given reason.

I am curious as to what the police "should have done" rather than show probable cause and get a search warrant. A knock-and-talk? Nobody was in the house. For all we know they tried. I doubt it, because they wouldn't have wanted to warn an illegal grow operation, but they may have.

"Kopbusters" clearly set up a probable cause situation. Heck, if you listen to the main guy being interviewed on TV he even says they used "encrypted emails" and "Wal*Mart blowup cellphones" while setting this up. They did everything criminals would do except they substituted plants at the end of it all. Furthermore, Geo, over at Sleepless, says there was also an anonymous tip. Anonymous tip + corroborating high energy use + corroborating empty house > probable cause.

Sleepless in Midland has a link to a YouTube video of the news report of this incident. However, here's a video of the actual search:

It ain't exactly the KGB breaking down the door at 3 am to drag someone off to the gulag. It's 5 pm and three police enter. They don't seem to have broken in the front door; in fact, it looks like a key is swinging from the door when they enter. Video doesn't show whether they knocked or not. They do a sweep of the house. They find the shirt and poster and then all the cameras. Pictures are taken of the shirt and poster (evidence for whatever Texas' statute they will eventually prosecute these people under). In the end the police are chuckling about everything.

I don't see this as damning. Embarrasing? Maybe. At least we know that's the spin that's being aimed for. Still, I don't see police doing a search of a house that walks like a duck and quacks like a duck causing any change because someone put a lot of effort into dressing a goose up like a duck.

Around and About

1) In Japan "it's considered an extremely serious offense to charge someone with a crime without being sure of his guilt, and it often takes Japanese prosecutors weeks or even months to bring formal charges in crimes while they sift through evidence and make sure they're not making a mistake."

2) "[M]arijuana's future is hazy."

3) Really? Is the Supreme Court really considering hearing argument over whether Obama is a natural-born citizen?

4) "Heroin prescription for addicts is not a viable long-term treatment option."

5) Are victim impact videos just a test of who has a really good multi-media expert?

04 December 2008

US Supreme Court: Pulido Petulance

The habeas petitioner admits to the Court that his position is wrong. The Court then descends into an argument over whether the 9th Circuit found that giving a jury an incorrect instruction, which allowed the jury to convict on a theory which was absolutely wrong, was harmless error.

God Bless Texas

As I've said before, any time I get depressed with the situation of the legal system in Virginia all I have to do is google "Texas" and realize that Virginia will never get that weird.

03 December 2008

Around and About

1: Law and Order: Equestrian Division (prosecutors on horses)

2: Violate the noise ordinance - listen to Manilow.

3: When you admit to committing adultery (in order to challenge a law you don't like) you can get prosecuted.

4: Prosecute them all - let God sort'em out. Or maybe just the people who vote you out of office.

5: No, you cannot just decide you are an attorney and undertake to defend someone charged with molestation.

6: Japan has revamped their criminal justice system so that each trial will have 3 professional and 6 lay judges to decide guilt or innocence and impose punishment. That's an interesting procedure. I wonder how it will work out in reality.

02 December 2008

Virginia Court of Appeals

Brannon v. Commonwealth (no. 1419-07-2): Hit and Run from an Injury Accident:

A minor fender bender does not give rise to an inference that the hitter should have known the hittee was injured. This is especially true when the hittee gets out of her car displaying no visible injuries and talks to the hitter before he flees.

Whitehead v. Commonwealth (no. 0040-08-1): Magical Dog Non-Search and Subsequent Physical Search of Car Passengers:

Drugs found on right-rear passenger after dog alerted at driver's side door admissible as car was searched first leaving passengers as only other place for drugs to be found.

Note: While I think the primary line of reasoning in this case is legitimate, there are some strange things in the dicta. For no discernible reason, in footnote 1 the Court absolutely fawns over the magical infallibility of dogs in their performance of non-searches. It ain't so.

The Court also distinguishes a Maryland opinion at least partially by the order in which the passengers of a car were searched. It's not really relevant (if the search of the last passenger is constitutional the search of the 2d should be as well); it's just something that's a little weird.

01 December 2008

Snow, Snow Everywhere and Not a Drop to Drink

This is a video of the snow falling on my front yard. Most of today was like this and I know because I had to take the day off work because the landlord was sending someone to fix my water. That's right, I've had no water since last Wednesday night. Thank goodness I bought a gym membership last month or I'd have had no place to get a shower. Still, I'm pretty much out of dishes and laundry.

And still, I have no water. I understand why it was hard for my landlord to get someone to do it over Thanksgiving weekend, as everyone was on holiday vacation. However, someone was supposed to come fix the well pump today at 9 a.m. At about 10 the landlord came by and realized that the person he'd spoken to wasn't there. He also told me that rather than fixing the pump to the well he was going to have them just hook the house to the town's water. Not sure how I feel about that. On the one hand, I'll not need to use Iron Out on my white laundry anymore. On the other hand, I'll have to actually pay for my water now.

Landlord promised that water would be hooked up "by this evening." They were going to run the pipe over the ground today and then come back tomorrow to dig the ditch and bury the pipe. Sometime after 1 p.m. Landlord came back and gave me the number to call in town to start paying for the water after hooked up and told me they had a different guy getting things put together. Then about 3:30 the guy who was supposed to be fixing the water up came to the door and told me that it wasn't going to happen today. They were called too late and he didn't think they should run the pipes with water in them above the ground because it was 2 degrees above freezing right now and the pipes would certainly freeze over night "and then we'll never get them unfroze and buried tomorrow."

So, here I sit, grungy and not very happy about having wasted a day off for no reason. I can't take tomorrow off because I have several cases. I hope they can get me hooked up without me being here to let them in the house because I ain't leaving the house unlocked.