28 August 2012

They'll probably let you out after you brush your teeth . . .

A Kentucky judge talks about the current situation in Kentucky with a defendant he has just sentenced.

17 August 2012

Contradictory Evidence Rules in Virginia

As of 01 July 2012, Virginia got a brand spanking new set of evidentiary rules. The rules are numbered as the federal rules of evidence, but supposedly reflect Virginia's previously common law rules of evidence. They do not seem to do this. Of particular interest is this section:
These Rules state the law of evidence in Virginia. They are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules shall have no effect on current law or practice on that topic.
Now, that's an interesting, and contradictory, rule for construction. We are told that these rules are exactly the same as the common law rules which have developed over the last couple centuries. This would seem to indicate that the old case law still applies. However, we are then immediately told that if these rules don't cover something the existing law remains in effect. This would seem to indicate that these rules abrogate old case law.

It's an important issue, because as you read through the new rules it becomes obvious that whoever put them together was more familiar with the federal rules than he was with the nuances of Virginia's common law rules of evidence. There are places throughout where the new rules do not track with the prior case law. For instance, everyone who practices in Virginia knows that the spousal privilege in Virginia could not be asserted by the defendant; it had to be asserted by the spouse his or herself. It was a bad rule (for all sorts of reasons), but it was the rule. Yet, if you look at Rule 2:504(B)(2) it states this:
2. Except in the prosecution for a criminal offense as set forth in subsections (B)(i), (ii) or (iii) above, in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between such person and his or her spouse during their marriage, regardless of whether the person is married to that spouse at the time the person objects to disclosure.
A plain reading of that seems to indicate that the defendant can now assert the spousal privilege. However, if you were constrained by Virginia's prior case law on this matter, you could read that to mean that the spouse called to testify can assert the privilege not to testify and as an aspect of that assertion foreclose any hearsay or other means by which that spousal communication might have come into evidence.

So what do we do? Do we contort 2:504(B)(2) to match existing case law or do we act as though the new rule abrogate the old rule?

Personally, my opinion is that the new rules will reign supreme; we may well tip-toe around the issue for a while, but in the end the rules will trump case law. The reason we really needed to adopt something along the model of the federal rules of evidence is that this is what we have all been arguing for years anyway. No one goes to law school and learns common law evidence anymore. Thus, when the last 30+ years of law students have come out they have been making arguments which track with the federal rules, not Virginia's common law. Then, they would get tripped up on things which were in Virginia's common law which were not in the federal rules. As a young lawyer, this happened to me personally when a long time practitioner pulled out the res gestae hearsay exception on me one day and I was clueless as to what he was arguing; I am sure it has happened to any number of other attorneys as well. What will happen now is that the vast majority of us will continue to argue using plain language while the new graduates will come in talking numberese ("It's a 504 violation judge") and the real sharp knives will come out in the capital murder cases where every comma in the new rules will be parsed. The new rules will prove to be an unopposable tide washing away everything that stands before them.

10 August 2012

Felons Voting, Sa'ad El-Amin, and Civil War Veterans

Sa'ad El-Amin - now there's a name I thought I'd never see again once I left the Greater Richmond area. I think the federal government had him in prison when I left back in 2006. I never knew the man personally, but he was one of those larger than life, fascinating train wrecks that Richmon always seemed to produce and which the feds came in and pruned out every so often.

Then, as I looked through my news feeds for the last couple weeks, his name popped up. He's suing in federal court to get his right to vote restored. Okay, if you are against taking felon's ability to vote away this makes a sort of superficial sense. It's a subject which needs to have some light shone upon it and he's a significant figure who can say he's impacted. Admittedly, I thought this might lead to a constructive conversation UNTIL I saw the rationale the news sites say he is using.

For those of you who don't know, Virginia does not allow anyone who has been convicted of a felony to vote. The ability to vote can be restored by the governor and Virginia's governors, of late, seem to be falling all over themselves to restore as many felons' ability to vote as possible. In any event it's a serious topic, deserving serious debate.

Unfortunately, Mr. El-Amin's argument goes in the opposite direction. I've not seen the filing personally, but the news sites are reporting that the Argument is based upon Section 2 of the 14th Amendment, which states:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty–one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty–one years of age in such State.
This section was put in the Amendment after the failure of attempts to include a section which guaranteed voting rights for African-Americans (because of the idea's unpopularity in Northern States). The idea was that if the Southern States refused to allow African-Americans to vote then African-Americans would not be counted when it came time to apportion congressional representatives to each State. It was perhaps an idea that was over-clever by half and it failed miserably. It was never actually implimented and may be the most ignored section in the entire constitution. In fact, the only thing this section has been used for is to show the Constitution's recognition of the ability of States to deny felons the franchise. Richardson v. Ramirez, 418 U.S. 24 (1974).

And here is where the El-Amin argument comes into play. It seizes upon the phrase "except for participation in rebellion, or other crime", which excludes those individuals from the calculus in determining the number of congressional representatives for a State. The argument then goes forward to point out that when the post Civil War Virginia constitution deprived felons of the right to vote it did not deprive those who fought for the Confederacy of their right to vote, despite the fact that they were in rebellion. Going further, the argument then points out that the rebels were, with extremely rare exceptions, White and the majority of people who are currently felons are African-American. Therefore, the denial of the right to vote is unconstitutional.

There are a couple huge flaws in this argument. (1) There is nothing which requires a State to deny both rebels and felons the right to vote. (2) At the time of the inclusion of the denial in the Virginia constitution it seems likely that the number of White felons were probably the majority so that it was not racially motivated. The first flaw is obvious, but the second requires someone with more time than me to research it. However, arguing the that current effect of one factor should be compared to the effect of another factor 140 or so years ago really makes no sense.

03 August 2012

No Weekend Jail

The Virginia Attorney General has opined that anyone convicted of a non-traffic felony in Virginia CANNOT be allowed to serve his jail time on weekends or on non-consecutive days. The argument seems solid and goes as such: the statute used to allow it, but was changed so that it no longer does. There's also an argument as to the difference "the trial" and "a trial" and the language difference's effect on whether the statute confers jurisdiction for a particular trial (the) or any trial (a).

I'm not sure why the General Assembly would think it necessary to take weekend incarceration away and leave home incarceration, work release, furloughs, and delayed reporting to jail. Nevertheless, the Attorney General's rationale seems solid.