28 June 2010

Mullaney v. Wilbur, 421 U. S. 684 (1975)
Does the prosecution have to disprove all possible affirmative defenses?

Sometimes you trip across cases which are just strange. I had Mullaney pointed out to me by another lawyer. It's a case which has two possible meanings and which Shepard lists as overruled. I don't think it actually is, but a subsequent USSC case, Patterson v. New York, 432 U. S. 197 (1977), definitely "explained" it, eliminating a broad reading.

Maine had a rather strange procedural scheme involving homicide trials. The prosecution had to prove the killing was unlawful and intentional. At that point "malice and aforethought" was "conclusively implied" and the defendant had to prove, to a preponderance, that the killing was done in the "heat of passion on sudden provocation" in order for the jury to find the defendant merely guilty of manslaughter. Mind you, this was in the pre-bifurcated trial days so that places the burden on the defendant of protesting his innocence and trying to prove he only committed manslaughter at the same time.

The appellate history of this is different from any I've seen before. The Maine supreme court ruled that Maine had a crime, "Homicide", and that murder and manslaughter were different degrees of this offense. Under long standing precedent, malice aforethought was presumed upon proving the two elements of homicide. Since Homicide had been proven, and the higher degree assumed, it was just fine for the defendant to have the burden of proving it was a heat of passion manslaughter.

The federal district court, upheld on appeal by the 1st Circuit, decided that as long as there were constitutional issues it could decide that the Maine supreme court was not the final arbiter of its own State's laws and therefore murder and manslaughter were separate, distinct crimes and the element of malice aforethought must be proven beyond a reasonable doubt to prove the crime of murder.

Meanwhile, back in Maine, the State supreme court was not taking this lying down. In a different case, it stuck to its guns and told the 1st Circuit where it could stick its interpretation of Maine law (wow, a State's rights argument from a Yankee court - now I've seen everything).

The case went up to the USSC, which passed that hot potato right back down to the 1st Circuit. This time the 1st Circuit caved on the who had the right to interpret the framework of State law, but ruled that it didn't matter anyway. Sure, the State had ruled that malice aforethought was conclusive implied with the proof of the two elements of Homicide, but it hadn't said anything about the counter element, heat of passion on sudden provocation. It then ruled that, because of the great differences in punishment dependant upon whether HoPoSP exists or not, the prosecution was required to prove that it didn't.

Sure it's silly. It's a backhanded, convoluted, contrived way of getting to the same conclusion. You want to determine your own State's legal framework? Fine. You want to set it up so that the element of malice aforethought is assumed? Fine. We'll work within your framework. If we can't make the prosecution prove one element, we'll make it disprove the counter element. You can have your precious, much stare decisesed presumption of malice aforethought. You just have to prove beyond a reasonable doubt that its counter, HoPoSP, didn't exist.

Surely, the USSC would see through all this childishness and set everybody straight. It would issue an opinion stating that even under a legal scheme set up as Maine's was the courts couldn't just assume an element exists and shift the burden to the defense to prove the counter to that element. Wouldn't it?


The USSC adopts the same convoluted reasoning in its entirety.

Why is this a problem? Well, because HoPoSP is clearly an affirmative defense. However, because Maine had a presumption of malice aforethought and the USSC wasn't ready to tell Maine that it couldn't do that, the court had to backdoor the problem. In effect, the USSC is requiring the proof of malice aforethought beyond a reasonable doubt - it's just being too polite to throw it back in the Maine's face.

So, post Mullaney, any defense attorney with a little creativity and some time to do some research can point at this case and claim that the prosecutor in his client's case must disprove any and all affirmative defenses found in the statutes and under the common law. The difficulty lies in the fact that this is impossible. One of the primary reasons for a defense being declared "affirmative" is that it is something which is impossible, or so hard as to be practically so, to prove or disprove. Consider the following statute:
It shall be illegal to hunt snipes unless the hunter has received permission to do so from a priest, , preacher, rabbi, imam, or similarly leader of a religious group.
So, a guy gets caught snipe hunting in Pitcairn County, Virginia. How is a prosecutor supposed to contact every single religious leader in the county, much less the entire Commonwealth or the the other States? It is not possible. On the other hand, the defendant knows he got permission to snipe hunt from Rabbi Burstein in Tellerville, Kentucky. In such a case either the defense must fall upon the defendant or it swallows the law. It will never be possible to prove that the defendant doesn't have permission from some religious leader somewhere.

Why should we care? Well, if the legislature can't write exceptions into the law without making the law impotent it will stop allowing exceptions. Mind you, exceptions won't entirely go away, it'll just be that officers and prosecutors will decide whether a prosecution should go forward in every single case case. Even if a great majority of the populace disagrees, the legislature cannot write the exception into the law because any exception will make the law unenforceable.

The saving grace was the Patterson case which came a mere two years later. In that case the USSC "explained" that
To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if, in its judgment, this would be too cumbersome, too expensive, and too inaccurate. We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.
Then it goes on to clearly state what it was too polite to say directly in Mullaney
Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient [malice aforethought] upon proof of the other elements of the offense. This is true even though the State's practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
So, in less than two years the USSC recognized that it had double-talked itself into a corner which made no sense and had to go back and say, "Yeah, yeah. Look we shoulda said it this way. Go away."

>Mullaney v. Wilbur, an object lesson on the abject failure of a court to say what it means and mean what it says.

26 June 2010

Axis of Justice

A defense attorney told my boss that there is an "Axis of Evil" in our office composed of the Hammer (me), "Madame" (who goes by many nicknames, but prefers Attila the Honey), and Scruffy. What makes us so evil? We dare to believe that people who commit crimes are supposed to go to jail. Anyway, we just wanted to thank him and let him know we appreciate the fact that he went out of his way to compliment us to the Boss.

19 June 2010

New Batman Fan Film

Technically, Batman & the Joker deals with crime, so I'm not too far off point posting this vid at CrimLaw.


So, I'm leaving my favorite restaurant after eating breakfast and there's a lady standing outside smoking and talking, in a very obvious Northern accent, on her cell phone.

"Yeah, it's supposed to get up to 93 degrees today. It's so hot you can't breathe. I don't know why anyone lives here . . ."

Is it wrong that I started whistling "When Johnny comes Marching Home" as I walked past her?

17 June 2010

15 June 2010

Are Catholics & Jews More Predisposed to Court Service?

No More Beer at the Outdoor Barbecue

At least not in Virginia . . .

We're counting down to 01 July 2010 when the new laws go into affect in Virginia. I've looked through them and most are just slight adjustments to the old laws. However, there's one which I think there'll be a lot of people violating. Ladies and Gentlemen, I present to you the law which requires you not to let your guests drink unless they are in your house:
7. Any person who keeps and possesses lawfully acquired alcoholic beverages in his residence for his personal use or that of his family. However, such alcoholic beverages may be served or given to guests in such residence by such person, his family or servants when (i) such guests are 21 years of age or older or are accompanied by a parent, guardian, or spouse who is 21 years of age or older and, (ii) the consumption or possession of such alcoholic beverages by family members or such guests occurs only in such residence where the alcoholic beverages are allowed to be served or given pursuant to this subdivision, and (iii) such service or gift is in no way a shift or device to evade the provisions of this title.
The bold part is what the General Assembly added, and YES that means that you cannot invite your buddies over and let them drink your beer outside as you barbecue and that your girlfriend cannot drink that glass of wine with you while you look at the stars on the back porch.

In fairness, I think they were probably trying to make it illegal for minors to drink outside the house, but that law is just a little too overly broad.

07 June 2010

Review: The Good Guys

5 Second Review: The pilot is fun to watch, but we'll see if the concept can last.

30 Second Review: I really enjoyed watching the pilot on Hulu. It was carried along by its primary actors who make the ridiculous story and hackneyed story fun to watch.

In Depth: This is a send up of the traditional cop drama. Colin Hanks plays the young cop who is far too much by the book and gets himself in trouble because he can't keep himself from telling his superiors what they are doing wrong. He gets assigned to babysit a drunk older cop who is untouchable because once upon a time he saved the governor's son. The older cop, played by Bradley Whitford, stumbles through life with a cheesy 80's mustache (almost Tom Selleck in its epicness) in a semi-drunken haze, constantly complaining about how things aren't as good as they used to be, and assuming that every case he's involved in will turn into a major case. The thing is, the kid and the old-cop are assigned to the most trivial theft cases their boss can find for them. And yet, they keep ending up in a room with the second best assassin in the world . . .

It's a fun concept executed well. That will work well for a show or two, but it's going to have to evolve into something more in a short period of time to keep my attention. I hope it does.

Monday Nights at 9:00 p.m. on Fox.

06 June 2010

Appeals Accepted by the
Virginia Supreme Court April & May 2010

Case Number and Style followed by asserted errors:

1. The Circuit Court erred in denying appellant’s motion to dismiss the robbery charge, and the Court of Appeals erred in affirming the robbery conviction, because the evidence did not establish that the taking was accomplished by force or intimidation before or concomitant with the taking.
2. The Circuit Court erred in affirming convictions and sentences for both robbery and larceny from the person arising from one and the same act, and the Court of Appeals erred in affirming the two convictions arising from the same act.
3. The Court of Appeals erred in refusing to apply the ends of justice exception to Rule 5A:18 when considering whether appellant could be convicted of both robbery and larceny from the person arising from the same act.
1. The trial court erred in holding that it possessed jurisdiction to modify a criminal defendant’s sentence over four years after the trial court’s entry of the final sentencing order in the case, where the 21-day period proscribed by Rule 1:1 had elapsed and where there were no applicable exceptions to the Rule.
2. The trial court erred in holding that the traditionally equitable writ of error audita querela is an available remedy in criminal cases.
3.Even if the writ of error audita querela is applicable to criminal proceedings, the trial court erred in issuing a writ of error audita querela under the circumstances of this case because it provided the defendant with a secondary, non-statutory remedy for ineffective assistance of counsel.
4.Assuming, arguendo, that the trial court relied upon the alternative relief requested, the trial court erred in erred in modifying the defendant’s finalized sentence through a writ of error coram vobis.
The trial court erred in relying on Va. Code §§ 37.2-901 and 907 to uphold the requirement that Hood had to choose whether to cooperate with the government psychologist before the appointment of counsel, in violation of the Due Process Clause of the Fifth Amendment to the Constitution of the United States, the Right to Counsel provision of the Sixth Amendment to the Constitution of the United States, and the Law of the Land provision in Article I § 8 of the Constitution of Virginia.
The Trial Court erred by finding sufficient evidence for the three counts of child cruelty and by denying the Appellant’s motion to strike.
The Court of Appeals erred when it affirmed Defendant's two convictions for violating Virginia Code Section 18.2-53.1 when his two convictions for violating Virginia Code Section 18.2-53 barred them due to Virginia Code Section 19.2-294 and "double jeopardy."
1. The Court of Appeals erred in holding that an affidavit in support of an ex parte petition for a protective order is not “testimonial” within the meaning of Confrontation Clause cases, in violation of Anthony Crawford’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
2. The Court of Appeals erred in holding that the principle of “forfeiture by wrongdoing” applies to permit extra-judicial statements in cases that arise in domestic relations contexts, even without specific proof in this case that the Defendant killed the victim to silence her or to keep her from testifying against him, in violation of Anthony Crawford’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
3. The Court of Appeals erred in holding that the Court of Appeals is not bound by the trial prosecutor’s concession that the affidavit was “testimonial.”
4. The Court of Appeals erred in applying the “right result/wrong reason” doctrine to uphold the conviction.
5. The Court of Appeals erred in failing to address Appellant’s argument that the evidence was insufficient to sustain the convictions of abduction with intent to defile and rape.
The Court of Appeals erred in finding that the seizure of Mr. Banks’ jacket was lawful under the Fourth Amendment as authorized by Banks’ consent.
1. The trial court erred in finding that sufficient evidence was presented by the Commonwealth to support Mr. Hall’s conviction under an indictment charging him with felony escape by use of force or violence.
2. The Court of Appeals of Virginia erred by concluding that there was no abuse of the trial court’s discretion in this matter.
The trial court committed reversible error by allowing Willie Javar Williams' hearsay allegations made to Sergeant Shaw concerning defendant into evidence.

02 June 2010

New, Permanent Virginia Bar Card

Every year Virginia issues us that Bar card, good for one year only. Now they're switching to a permanent card. We're going to get a temporary card this Summer after we pay our dues and then they're going to give us the permanent one in December.

All I can say is that I hope it is pretty dang idestructible. The current cards are hard to tear, but after a year in my wallet the ink on them is pretty much destroyed. I need that new card every year.

New Cases Added to Virginia Criminal Cases & Law

April's cases have been added today. May's should follow shortly.

01 June 2010

The Great Escape

So, I knew the young dog was getting out of the house and I figured it was through the window I leave open for the cat, but I didn't know exactly how he was doing it until I was sitting there and he decided it was time to get outside. By the time I was able to get my camera he was already on top of the cat's tube and this is what happened next.