31 December 2010

Is Requiring the Noble Act Unethical?

If you work in criminal law you spend much of your time hearing why someone shouldn't be incarcerated and/or why they should get out of jail/prison. Most of the fall under the umbrella of the Big Four and usually they don't work after someone has gone to prison.

Nevertheless, Jamie and Gladys Scott are getting out of prison. Sixteen years ago the two women were part of a violent robbery in which they lured two people to a spot where they were jumped by three others with a shotgun and each was hit in the head. The effort didn't garner much for the robbers because the victims only had $11. Each sister was sentenced to life in prison. Apparently, this has been a cause celebre in Mississippi where the women's supporters focus on the fact that happenstance caused only $11 to be stolen rather than the armed robbery in which purposeful violence was done to each victim.

In any event, the governor is suspending the sentence of both women. One sister's kidneys have gone bad and she is costing the prison system a lot of money in care, so she's getting a release. The other sister wants to donate her kidney to the ailing sister. The governor has agreed to suspend her sentence on condition that she do so.

And there's where people start having problems. Is the governor's requirement legal since you are not allowed to "sell" organs and threatening life in prison puts a price on an organ? Is it ethical for the governor to require an inmate to give up a body part as a condition of a suspended sentence? What happens if the two are not compatible and the transplant cannot take place?

Let's start with the compatibility question first. Every lawyer in the world knows the answer to this. Impossible terms of a contract cannot be enforced. If the organ is not compatible with her sister she'll still get the benefit of her bargain as long as she entered into it in good faith. As you'll see below, I don't think this is an actual contract, but conditions agreed to for probation are generally treated as though they were a contract.

As for the legality and ethics of the situation, that's something of a red herring. This isn't so much a forcing her to do it situation as it is a trust but verify one. The governor didn't go to her and make an offer "Give up the kidney and you get out." Instead, she went to him and said "I need to get out so I can give my sister a kidney." In the first case there would be an offer and acceptance with mutual consideration. In the second case the governor is not getting anything so there's really no consideration on his side.

The manner in which Governor Barbour is handling this is the correct way of handling this sort of situation. Anyone who has worked in criminal law knows that there are a lot of people out there who will say and offer anything to get out of their sentences. They may even mean it when they offer. However, somewhere between the doors of the jail and the point at which they would accomplish their good intentions they lose their way, never accomplishing the good they intended. There are various causes for this - old friends, partying, drugs, apathy, etc. However, if it's in an agreement with which failure to abide means returning to prison, they are more likely to follow through. And if they don't they can serve as an example to the next person who gets a sweetheart deal and might consider blowing it off after he gets out.

Mind you, I hope that the mere nobility of the sister's heart will keep her on track to helping save her sister. However, I've seen too many family members mess over each other once they're out of jail to think he should let her go without some means of verifying that she does what she says she will.

Billy the Kid is Still an Outlaw

Y'know, it's kinda cool that the governor is up on his history, but is contemplating a pardon for Billy the Kid really that important of an issue?

30 December 2010

Why Do We Always Lose the Zombie Apocalypse?

So, I was watching AMC's "The Walking Dead" when an important question hit me: How in the world did we lose to the zombie horde?

I mean, I get that there would be significant losses at the beginning. There would be initial losses of doctors and first responders before it got figured out. Then we'd all have warning. From that point a bunch of zombies stumbling along at one mile per hour should be pretty easy to handle.1

Of course, there will be greater casualties among liberals. Liberals would not have firearms to shoot the zombies in their heads as they closed in. As well, I figure San Francisco is just to be written off. As soon as the government starts to shoot zombies there will be massive demonstrations and rallies in San Fran in support of Zombie-Americans. Thousands upon thousands of tree hugging, tie-dye wearing, hippy types will throng the streets with signs decrying imperialistic capitalism oppressing our zombie comrades. Then, as the zombies start to encircle them, they won't run away because they want to show solidarity. Thus, there will be massive casualties and a ton of people who got away after just being bitten will turn and the zombie army will be too large for San Fran to be held. In the end the military will at least have to napalm the city to destroy the masses of zombies occupying the streets. The military's first instinct would probably be to nuke San Fran (just on general principals), but I figure some admirals may lobby to save the naval facilities.2

Beyond the liberals there would also be those who were just too sentimental to throw Aunt May out after she was bit. So, we'll lose a fair number of people just because they are compassionate.

And, while the police, firemen, gang-members and suburban NRA members are fighting the zombies in the cities, there won't be much of a problem in the rural areas and mountains because out there firearms aren't considered an option, they're considered an appendage. Your basic zombie starts walking down the street in Honaker, Virginia and I'm sure somebody is going to take care of it pretty quick. Heck, even without firearms a guy who works on a farm or in a mine is probably going to be proficient enough with hand held tools to run up on a zombie and kill it with a pick or axe or shovel or whatever else is handy.

And, then there's the military reaction. You know, I was a REMF, M.I. guy and I was a good enough shot with my M-16 that I could have stood at the end of a street and shot a couple dozen zombies in the head (for some reason that's the only way to kill them) as they shuffled down the street toward me. I'm pretty sure soldiers in the combat units would do extremely serious damage to the zombies. Heck, with slow moving, easy shots, you might even be able to train sailors - and maybe even possibly airmen - to fight as though they are actually in the military. I give it six months, a year at the most, before the military has the situation entirely in hand.

Now, some of you are going think that a zombie apocalypse might not be such a terrible idea. There would be a huge drop in moonbats in the world (see San Francisco supra). However, this would leave us with no balance for the wingnuts. After all, the wingnuts are going to be the people out in compounds in the middle of Colorado with 10 firearms each and enough stocked food to last ten years (y'know, the ones the ATF & FBI haven't raided yet). Not sure I want to live in a world that unbalanced. Maybe if we could just contain the zombie outbreak to San Fran and NYC . . .

1 Yes, I realize there are some outlier movies wherein the zombies move fast, but that's just silliness. In any event, fast zombies would probably result in greater casualties, but not zombie victory.

2 This is not to say that all of California will be lost. I figure that L.A. will do pretty well. Heck, between police who aren't afraid to use force when they can and gangs which have kids holding territory on every street corner the zombies won't stand a chance.

28 December 2010

27 December 2010

November Cases are Up at Virginia Criminal Cases & Law

click on graphic to go to Virginia Criminal Law & Cases

Pretext Stops in Virginia

I was catching up on reviewing cases from the Virginia appellate courts and ran across the following case, which pretty much puts the courts' stance on pretext stops as baldly as possible.

Thomas v. Commonwealth, NOV10, VaApp No. 1288-09-3: (1) The fact that the seizure of a person is pretextual (car stop) does not factor into the question as to whether the seizure was constitutional. (2) The question of the constitutionality of a seizure is not dependent on the officer's state of mind, what the officer says, or evidence of the officer's subjective rationale. (3) An objective assessment of the officer’s actions in light of the facts and circumstances at the time of seizure will determine whether the seizure was constitutionally valid. (4) When a seizure is valid (traffic violation) the officer does not violate the 4th Amendment when he briefly extends the seizure to ask questions not related to the objectively valid reason for the seizure. (5) It is not unreasonable to extend the time of the seizure of one person in a car in order to run a warrant check on another person in the car. (6) During a traffic stop the officer has the authority to (a) obtain registration of the vehicle; and (b) get the identities of all persons in the car; and (c) seek radio dispatch confirmation of the information gotten from those in the car; and (d) detain the persons in the car, other than the driver, for the duration of the stop; and (e) ask questions unrelated to the stop; and (f) order anyone in the vehicle to exit it; and (g) walk a drug sniffing dog around the vehicle; and (h) seize weapons the moment they are seen.

21 December 2010

Moments for a Prosecutor to Drool Over

The last statement made by the defendant on direct examination:
. . . but I'm not guilty this time!"

Writing an Article for a Law Review

Last week I turned in the law review article I've been working on. It's now in the hands of 2L's and 3L's whom I pity because they have to correct my bluebooking. I went through my approximately 170 endnotes and tried to get them in the correct format, but I am terribly out of practice in doing anything other than just doing a cite which lets the reader know where to find the information. Putting things in the right order and differentiating between those cites which should be italicized and those which should have small caps just isn't something I'm used to anymore. Also, my Bluebook was old enough that it didn't really address internet sources and the sources I used were all from the internet.

For those of you out there who are practitioners and interested in writing papers, I encourage you to jump in with both feet. It isn't like the old days when you just couldn't do it unless you took time out your life to drive to the nearest law school library. Nowadays, with online services such as Lexis, WestLaw, or Fastcase you can do most of the actual legal research fairly easily. You'll also find that a lot of journals are online and free now and that's not limited to only legal journals. As well, the government puts a lot of information out that can be very useful.

My worst difficulty was finding sources to back things every practitioner around here knows to be true. It was frustrating because there were some important issues that I wanted to address, but didn't feel I could because I couldn't prove them. However, I don't think this was because I was using the internet to find sources. Instead, I think it was more because the issue I was writing about is one that is most serious out here in the hinterlands, away from the major news agencies. I think this was also a reality of the type of research I was doing. This paper is more of a sociology paper and less a legal interpretation paper. The last article I wrote was about the 4th Amendment and the US Supreme Court's ruling on dog sniffs. Because it was much more law oriented I didn't have problems getting sources for it.

20 December 2010

Admirable Brevity in an Opinion

Here is the entire decision for State v. T.L.C., 186 NJ 600 (2006):

You Say Lower Crime Rate Like It's a Bad Thing

Via Simple Justice, I tripped over a new website, Right on Crime. I went over to check it out and it seemed like most sites of this type. It's well put together, but the content isn't really for anyone looking to actually think about the issues. Basically, it seems to be about punishing the guilty, supporting victims, and saving money. All of these goals are laudable, but the third seems not to fit too well with the first and second.

I was curious about one thing. The site has a section on the right where there is a map showing various highlighted states where "initiatives" for reform have been put forward. I was curious as to what reforms are being touted by a site which is self consciously from the right. We've already had victim rights written into the law and done away with parole. So, I went to the Virginia page.

The good news is that "Virginia ranked 41st in index crimes, 42nd in violent crimes and 40th in property crimes per 100,000 resident population." How did Virginia get such a low crime rate? It could have something to do with the fact that Virginia has a 9% higher incarceration rate than other states. BTW, I know there is someone out there who can cite statistics "proving" that the high incarceration rate isn't the cause of the low crime rate. Of course, there are approximately 40 states out there with lower incarceration rates and higher crime rates, so I'm going to have to pull out the lies, d@mn lies, & statistics quote. At the very least, Virginia's in an "if it ain't broke, don't fix it" situation.

When you read the page it becomes evident that the Big Bad here is that criminals are actually being made to go to prison. This is a strange position for a right of center site to take and even stranger is the reliance of this Virginia section of the Right on Crime site on a solidly left of center site which is dedicated to reducing prisoners' sentences.

As far as it goes, the site feeds us the at least partially erroneous line that the increase in incarceration is due to the abolition of parole in Virginia. What's never discussed when people raise this point is that when the General Assembly abolished parole it set in place sentencing guideline which generally reduced sentences to about what they would have been if the defendant had gotten parole. There are exceptions, such as when a judge sentences above the guidelines or those on pre-1995 sentences which would have resulted in parole sentences (but which the parole boards are very stingy to give out anymore), and these would tend to raise the amount of time someone spends in prison. However, it is doubtful that these are enough to account for most people incarcerated.

We are also told that "Virginia has only 1 in 94 adults is under community supervision compared with the national average of 1 in 45.[x] Combining these two statistics – a high incarceration rate and a low community supervision rate—shows that 52 percent of Virginia’s adult correctional population is behind bars.[xi] Accordingly, this is the fourth highest rate in the country. Compared to other states, Virginia is using more incarceration and less community supervision."

The terrible evil in this? Keeping criminals off the street costs money. The solution? Put more offenders out on the street and throw them in jail immediately every time they violate for 30 days.

I've heard this called "shock violation" before and I'm not actually opposed to the theory of it for people who are on probation (although I do not believe it should be relied upon as an excuse to put someone on probation rather than giving him the sentence he should receive). I'm a big believer in telling someone where the line is and the punishment he will get if he crosses it. Personally, I think that every single probationer should be informed as part of his initial plea agreement what the punishment for any violations of probation would be. I believe that a potential offender who knows that he will be punished is more likely to toe the line than one who thinks he might be punished. While I favor heavier sentences, a 30 day sentence could do the job if it was administered quickly and with no nonsense for each violation.

The problem is the immediacy requirement. The three violations I think are most prevalent are new convictions, failing drug tests, and absconding. None of these lend themselves to immediate punishment. New convictions really shouldn't be limited to 30 days as a probation violation (except, perhaps misdemeanor traffic offenses or citations). Even if they were so limited the immediacy could only be achieved if the 30 days were imposed as soon as the arrest took place and I doubt anyone is going to really push for that without a conviction. Failing a drug test is the violation most likely to achieve the immediacy requirement. Most people seem to fail and admit usage to their probation officer. However, this may not be the outcome everyone really wants. Currently, when a probationer fails a test or two the probation officer usually tries to put him in a program to help him deal with the problem. In a working shock violation system that goes out the window and the officer should arrest as soon as a single test is failed. Another issue is the testing itself. The dipstick method is not absolutely determinative. Therefore, when a probationer denies use despite failing the initial test, a sample is sent to a lab for more reliable tests. This means that the system can be gamed. A probationer who does not want to go to jail immediately can deny. Then the officer and judge are faced with the choice of immediacy or accuracy. Finally, there is absconding and the reason that someone who has absconded can't be immediately punished is obvious.

I don't see anything offered on this site working well.

Nevertheless, if you want a solution that will save Virginia money I've got one. Exile. Every non-violent felon in Virginia should get a pass on his first offense. He gets probation without incarceration - pretty much like it is now. The second non-violent offense he is exiled from Virginia. After conviction he is held at a jail. Within three weeks an unmarked, nondescript van arrives at the jail on a random day at a random time. The offender, and all others of his ilk, is dressed in his civilian clothes and put in a cage in the back of the van. The driver has a computer in the front that chooses a random town at least three states away and 2 hours from an interstate. The driver drives to that spot, hits a button which opens the back of the van, and Virginia no longer has to deal with the offender. Of course, some will be tempted to try to return, but the punishment for returning would be something rather horrific, like being dropped off randomly in the middle of a random northern blight city or, for the worst offenders, being shipped to Texas. I think this would save Virginia a lot of money, lower our incarceration rate, and probably result in an even greater reduction in Virginia's crime rate.

17 December 2010

14 December 2010

Did the Police Officer Act Incorrectly?

Over the last week or so there has been much written on the blawgs about the arrest of Joel Rosenberg. I'm not going to write about the propriety of Mr. Rosenberg's behavior after the incident or the officer's decision to charge him. However, there is a video which raises the question, "Did the officer act inappropriately?"

Just watch until the firearm is given back and taken out of the building

I've looked into the statute which Mr. Rosenberg quotes and, as best I can tell, it looks as though he is right in stating that the judge could not ban firearms from the public building. Minnesota Code 642.714 subd. 17 allows firearms to be banned from "private establishments", but they are obviously not in a private establishment. And then there's subd. 23 of the same code section:
This section sets forth the complete and exclusive criteria and procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.
A judge is clearly a person acting under color of law or governmental authority. This appears to absolutely bar a judge from banning firearms from any place at any time.

Of course, that's insane. And before anyone starts telling me that's just the prosecutor in me speaking, I'm pretty sure anyone who has been in a courthouse when emotions are running high, on both the victim's side of the aisle and the defendant's, has been glad that no weapons were allowed. Just imagine a trial in which the victim was a 3d Street Samurai Crip and the defendant is a 7th Street Banzai Latin King. Do you think the judge should be absolutely banned from keeping members of the two sets from bringing firearms to the courthouse?

Nevertheless, I couldn't find an exception to the law. That doesn't mean there isn't one somewhere, just that I couldn't find it in the statute or the case law addressing the statute. So, as far as I can tell the judge was wrong to banish firearms from the building.

On the other hand, consider the officer's situation. He has an order from a judge banning firearms. The judge is higher on the food chain than the officer. The officer is going to obey the command of the judge. So, it's no surprise that he acted to enforce the judge's order.

What's the solution here? In Virginia the technically correct solution is go over the judge's head and get an order of mandamus requiring the judge to withdraw his order or an order of prohibition to keep the judge from enforcing the order. However, this is time consuming and not practical for someone who is not going into the building often. In this case you could run up and punch the bear in the nose, trusting that he won't figure out how to get free of the chains and maul you.

06 December 2010

Can you be convicted of credit card theft and larceny of the wallet it was in?

So, I left you last time after telling how a judge struck a credit card theft charge I was prosecuting after pointing to a case which said a defendant couldn't be prosecuted for the theft of the wallet and the cards within the wallet or it would violate double jeopardy. I also told you how, after I got home and it was too late, I eventually came up with the correct answer which should have kept the judge from striking the charge. So, let me lay it out.


Under the common law credit cards were "choses in action" and thus had no value except for the value of the plastic of which they were made. However, the Virginia General Assembly passed a law making the theft of any credit card a felony. Subsequently, the Virginia Court of Appeals specifically excepted credit card theft from the constraints of the single larceny doctrine. This meant that if a defendant stole twenty credit cards from the same person, at the same time, the defendant could be charged with 20 felony credit card thefts. As the single larceny doctrine is inapplicable to credit card theft, the only constraints on charging credit card theft are the double jeopardy prohibitions in the Virginia and federal constitutions.

Since 1932 the test for double jeopardy has come from Blockburger v. United States. The simplest way to describe this test is as a "different elements test." Basically, if a defendant is charged with two types of crimes each type of crime must have an element that the other does not have. An example of this can be found in Hudgins v. Commonwealth, in which the Virginia Supreme Court ruled that robbery and larceny from a person can both be charged because, while they both have many of the same elements, robbery requires the use of force and larceny from a person requires the taking of something worth more than $5. The different elements test has been, and is, the prevailing double jeopardy standard.

However, for a short time in the early 1990's (1990-93) the US Supreme Court tried out a different standard. In a case called Grady v. Corbin the USSC adopted a "same conduct test." Under this test if the same act violated two laws the defendant could only be charged with one crime. However, after only three years, in Dixon v. United States the USSC reversed itself and abolished the same conduct test and returned to the different elements test.

Unfortunately, the case which I couldn't rebut in the courtroom, Darnell v. Commonwealth, 12 Va.App. 948 (1991)(not available on open web), was decided during the time that Grady was good law. In Darnell a wallet was stolen and the defendant was charged with petit larceny for the wallet and credit card theft for a credit cards in the wallet. Darnell objected to this as violative of double jeopardy. The Virginia Court of Appeals first runs through the Blockburger different elements test and concludes that the two prosecutions do not violate the different elements test. Larceny of the wallet has an "intent to permanently deprive" element and credit card theft has an "intent to use, sell or transfer" element. With the different intent elements, charging the two crimes at the same time passes the Blocburger test.

Then the appellate court turns to the Grady same conduct test. It finds that Darnell had to steal the wallet in order to get the credit cards in it. Since stealing the credit cards involved stealing the wallet the thefts involve the same conduct. Thus, they fail the same conduct test under Grady. Therefore, as long as Grady was good law it was forbidden to charge credit card theft and theft of the wallet or purse they were in.

Of course, Grady isn't good law anymore. It was only good law from 1990 until 1993. In 1993, the USSC abandoned the same conduct test and reversed Grady in Dixon v. United States. The Virginia Supreme Court specifically followed the USSC in this in Hudgins v. Commonwealth in 2005. Maybe there was a similar decision within the 12 year gap, but I couldn't find it and apparently neither could the Virginia Court of Appeals which the Virginia Supreme Court overruled.

It's not like the Virginia Court of Appeals hid the fact that the Darnell case was based upon Grady. The first paragraph ends with this sentence
We find that the prosecutions under Code § 18.2-192 are barred by Grady and, therefore, we reverse the convictions.
I just didn't know that that Grady had been overruled. Heck, I didn't even know that Grady existed.

Next time I'll know to stand up and say, "Darnell was based on Grady which was overruled by Dixon and Hudgins. Even Darnell recognized that charging credit card theft and larceny of the wallet isn't barred under the Blockburger test. And, per Scott, the single larceny doctrine does not apply to credit card theft charges."

Of course, I've never been quite so glib and after a uttering a string of cases like that I'll have to spend the next 45 minutes explaining myself. Still, at least I won't be sitting there staring uselessly at a computer screen like I was last week.

05 December 2010

The Judge, Motion to Strike, and Credit Card Theft

We're at the end of evidence in a jury trial where the defendant has been charged with Grand Larceny and Credit Card Theft. The defense attorney has made the motion to strike the evidence as legally insufficient to sustain the charges. We argue and I sit down thinking that I've fought off the motion. I should know better. It's always those moments when you get a little cocksure that fate, or the judge, reaches out and slaps you around a bit.

The judge asks me if the charge of credit card theft is valid if the basis of the grand larceny is the stealing of the wallet and the credit cards are in the wallet. It's a classic question which is based on double jeopardy and the single larceny doctrine (if a defendant steals from one person at a singular period of time he can only be charged with one larceny instead of one larceny for each item taken). Again, I stand up (over)confident that I've got this answer down pat. "Judge, case law states that the single larceny doctrine doesn't apply to credit card theft."

Judge: "In some cases, but I don't think that's correct when we're talking about credit cards in a wallet or purse, the theft of which has been charged as grand larceny." Suddenly my endorphins spike. The judge wouldn't have made that statement without something to back it up. I ask for a couple minutes to look it up. "Yes, Mr. Lammers, and I suggest you start by looking at Darnell at 12 Va.App. 948."

I start plunking away at my computer. I've never heard of Darnell. I find it pretty quickly and it says that if the cards are in the wallet charging a larceny for the wallet forecloses a credit card theft charge for cards int he wallet. That just rings absolutely wrong. In the ten years I've been practicing law, I've seen hundreds of people charged with credit card theft when they stole wallets or purses with credit cards in them. I look for subsequent cases which rely on or elaborate upon Darnell, but it's an orphan. There's no serious treatment of it or citation to it. In fact, I can only find two citations. The first just cites to Darnell for an element of credit card theft (in an unpublished opinion). The second cites to Darnell as establishing that petit larceny is not a lesser included offense of credit card theft. I don't know how long I plunked along on the computer, but eventually the judge cut me off and, because I hadn't found anything contrary to Darnell, struck the credit card charge.

I don't think it made a difference in the final outcome of the case, but it was a quick lesson in not getting too cocky. Of course, once I got home and put a little research into it I found the correct answer, but by then it was a little too late.

What's the correct answer? You'll have to come back on Monday and read the next post to get that answer.