27 September 2010

CLTV: Should the Government Give Defendants Vouchers Instead of a Court Appointed Attorney?

If you want a copy of this paper for yourself contact CATO at (202) 842-0200 or through the website www.cato.org.

Video quality not quite as high this week because it was going to take over 20 hours to upload. Consequently, I compressed it as a .mov and only had to spend an hour uploading it. And, yes, I know that I goofed at the end and didn't shrink the logo up into the corner, but ya'll had already seen enough of my ugly mug by then anyway. ;-)

20 September 2010

Anchoring Pleas & Judicial Negotiation

A reply to Professor Miller's article on the participation of judges in plea negotiations.

If you want to read the article yourself you can find it here.

13 September 2010

CLTV: Inferring Malice

Restarting the weekly CLTV. There are some glitches this week in the intro and the text at the end. As well, the points made could be tighter. It could probably all have been fixed, but I was getting over some sort of illness yesterday and just didn't have the strength to keep fighting it. :-P

From CLTV.

11 September 2010

Off Point: The Ole Miss Admiral Akhbars

"If Admiral Akhbar was truly adopted, the average student's IQ at the University of Mississippi would sky rocket."

08 September 2010

Winner of the Last Name That Pic

Marvin McTavish, maniacal masked mangler, manifests mousy mammalian muggings.

Court in Kentucky (compared to Virginia)

Being a curious sort, I was in Kentucky today and arranged to sit in and watch a general district court in session. It was interesting to see how the practices compared with the Virginia general district court.

Much like Virginia, the general district court in Kentucky is a court for misdemeanors and preliminary hearings on felonies. The courts have different "departments" each of which has its own judge. If something is in Department 1 the case is Judge Smith's. If something is in Department 2 the case is Judge Jones'. I guess this is done primarily as a means of docket control. We don't do this in Virginia. If there are three judges in a county the case just gets put on Judge Smith's docket or Judge Jones' docket, without any further indicators. Unlike Virginia, jury trials are held in district court. There is a right of appeal to the circuit court, but I am uncertain what that entails. In Virginia a defendant cannot get a court of record or a misdemeanor jury trial unless he appeals a conviction in general district court. I don't think that a Kentucky defendant can get two bites at the jury apple, but I don't know the nuts and bolts of a misdemeanor appeal.

When court started, the first thing the judge did was read the assembled defendants their rights. This included their Miranda rights and their rights under Kentucky law. We don't do that in Virginia. An interesting right in Kentucky is that preliminary hearings must take place within ten days if the defendant is incarcerated and twenty if he is on the street. There's nothing like that in Virginia; we'll do the preliminary hearing when we do the preliminary hearing (generally within a couple months).

The docket was organized so that every case had a "call" number. While cases weren't necessarily called in order, each case was referred to by its call number: "Call number 6, Commonwealth v. Smith." Nothing like that in Virginia; we just list the defendants alphabetically.

Part of the day was spent on the first appearance of several defendants in court. The defendant would get called up, the judge would ask the prosecutor if there was an offer and the prosecutor would either make an offer which the defendant could accept on the spot or say "no offer." If the defendant refused the deal or the prosecutor said "no offer" the case was set over to a later date for trial. This is very different from Virginia. We don't usually have a prosecutor participate in the first appearance. All the Virginia judge does is tell the defendant his charges, determine what the defendant will do about an attorney, and address bond. Kentucky also has its judges arraign the defendant at the first appearance. Virginia doesn't do this (more accurately, some Virginia judges do, but it has absolutely no legal affect). I must say, seeing the judge and prosecutor interact with a defendant without even addressing whether the defendant wanted an attorney was the thing which most shocked me as a Virginia attorney. However, the judge has already informed everyone of their rights by then, so they know they have a right to an attorney, and it is the citizen's duty to assert his rights. I can see how it passes muster. It was just so very foreign to my experience

Much like misdemeanor cases everywhere, most cases were settled with "pretrial diversion", time served, "conditionally discharged" time, or a fine. "Pretrial diversion" appeared to be what Virginia calls "taking the case under advisement": go forth and sin no more and in 6-12 months we will make your charge disappear (if you've not gotten in any other trouble). "Conditionally discharged" time seemed to be what Virginia calls suspended time: you're convicted, but you won't have to serve this time unless you get into trouble again in the next year or two.

While procedure and substantive crimes had a lot of similarities, the language was often quite different - although usually I could suss out the meaning thru context. In addition to the different names already listed above, I heard things like "court trial" (bench trial), "cold checks" (bad checks), "3d degree trafficking" (distribution schedule IV or V), failure to appear - warrant of arrest (capias), etc. My favorite of all these was "criminal mischief", which I pictured in my mind as somebody getting drunk, putting on a clown suit, and sneaking around giving people hot foots. It turns out it was just what we in Virginia rather banally call destruction of property; personally, I prefer the imagery that criminal mischief implies.

Finally, Kentucky has a charge which we need in Virginia: "prescription not in proper container." This appears to be a charge for not keeping the pills in the container in which they came from the pharmacy. For those of you in areas where the prescription drug abuse problem hasn't been noticed yet, requiring people to keep the pills in the container that states when they were obtained and how many were obtained is extremely useful (as opposed to the mixed bag of random pills under the driver's seat which he miraculously comes up with a scrip for each and every type of pill once charged).