24 July 2013

Larceny of the Lost (In 3D)

I'm over in Duskendale County waiting to do a special prosecution. As is the norm in Duskendale, all the attorneys are sitting in a room outside the general district court discussing the important issue of the day: can a wallet which has been dropped by its owner be stolen?

The defense attorneys in the room were arguing that something not in the possession couldn't possibly be stolen because nothing was taken. Larceny is the taking of another's property with the intent to permanently deprive the other of that property. If the other person isn't in possession it can't be taken from him.

The Duskendale County prosecutor countered that there was a difference between mislaid property and abandoned property. Abandoned property cannot be stolen. Mislaid property could. After all, we've all been to SuperMegaMart and not been able to find our car in the massive parking lot afterwards. If someone took your car in row 215 while you were looking for the car in row 178 it would still be a larceny.

Then they turned and looked at me. Dang it. You teach a few CLE's and people start to think you know more than you actually do. Slowly, the gears in my brain started to clang into motion. Heck, I've never had to research that question before. I was looking forward to watching them argue this out in court so I could see what cases they were going to cite and how the appellate courts have handled this issue. My sense of the matter was that the prosecutor had the better of the argument, but I did find the defense attorney's argument interesting.

Anyway, the best I was immediately able to tell them was that I knew that under the 4th Amendment the fact that an item was lost did not preclude an individual from having a continuing privacy interest in the item. In other words, if a police officer finds a purse or wallet or backpack, the officer is only allowed to look inside in a manner meant to find identification; he is not allowed to do a general search of the item.

Of course, that wasn't satisfying for anyone - "That's the Constitution, not the common law." - so I did what every lawyer does. I jumped on the internet. It took a few minutes and there didn't seem to be any modern cases on point, but eventually I found Tanner v. Commonwealth, 14 Gratt. 635 (1857).

Tanner is about the taking of lost property and lays out the rules as follows:

A.  Lost property remains in the constructive possession of its owner.

B. Larceny of lost property occurs when

1.  The taker intends to exercise dominion over the lost property when she took it, and

2.  The taker knows the owner or has means of ascertaining the owner.

C.  However, if there is no way of ascertaining ownership there can be no larceny of the lost property.
Of course, the language in Tanner isn't in the exact terms of art we now use, but the rule is pretty clear when you read it.

So, if anyone leaves their purse or wallet sitting on a shelf at SuperMegaMart and another person comes along and snatches it, that is almost always a larceny because of identification materials carried within. On the other hand, if someone comes across a fifty dollar bill on the sidewalk or a finds a diamond ring in a gutter it won't be a larceny - even if the person intends to keep it when she picks it up - because there is no way to identify the actual owner.

16 July 2013

New Discovery Rule in Virgina?
Flaws and Fixes

For as long as I have been practicing law in Virginia the big fight in criminal discovery has been over police reports. The defense Bar has lost this fight over and over again arguing everything from the Constitution to FOIA. Now they are trying to get the Virginia Supreme Court to change the Rule.

Virginia's discovery is limited. The prosecution doesn't have to tell the defendant the names of its witnesses or give the defense any statements made by anyone other than the defendant himself. Of course, the police report is the Holy Grail for this information since most reports have the name, address, phone number, and statement of each witness. It's also a wonderful tool for use in impeaching the officer. "Officer Smith, on page 32 of your report you state the purse was dark blue and today you've told the jury it was black. Which was it? Why should the jury believe anything else you've said if you aren't being truthful about this?"

All that said, in the vast majority of cases it would not matter if the defendant was given the police report. In most minor felonies - larceny, writing bad checks, embezzlement, malicious wounding, possession of drugs, etc. - an "open file" policy makes life easier all around and may lead to cases settling more quickly.  However, there are a number of cases where this is not the case and herein lies the failure in the proposed rule.
Proposed 3A:11(b)(4) - For good cause shown and pursuant to a protective order entered by a court, the Commonwealth may redact the identity and address or other similar identifying information of a witness when necessary to protect the safety of that witness or his or her family.
There are only two ways in which this can work. First, the Commonwealth Attorney can get the judge to sign a standing order allowing the prosecutor, at his discretion, to decide when to withhold this information. Second, the prosecutor would be allowed to have ex parte hearings with the judge. If the prosecutor has to provide this information in open court, with the defendant present, what's the point since the defendant will probably hear enough to identify the witness anyway?  The problem is, I don't think that Proposed 3A:11(b)(4) allows either of these and if I don't I'm sure those of you in the defense bar surely do not.

Here's a better example of what this subsection of the Rule should read like:
 3A:11(b)(4) - (i) The Commonwealth Attorney, or a designated deputy, may redact information from any report or statement when such information would endanger a person or harm an ongoing investigation. A letter notifying the Court that redaction has occurred shall be entered into the Court's file and copied to the defendant.  

(ii) A defendant may challenge the redaction. Upon challenge the defendant shall argue his case to the Court. Thereafter, the Court shall have an ex parte hearing with the Commonwealth in which the Commonwealth must justify its redaction.

(iii)  This shall not relieve the Commonwealth of the duty to make any constitutionally required disclosures.
Something like this would allow open discovery in most cases and provide a workable solution for those cases in which open discovery would be deleterious. Of course, it will therefore leave everyone unhappy. Too many people - on both sides of the aisle - view what we do as a war wherein we must destroy the enemy and craft rules and laws to our advantage and their disadvantage rather than a contest to determine truth as best we can. The Rule as currently written favors prosecutors. The Rule as proposed favors defendants. The Rule as I have laid out above is more of a middle way, fairer to both sides.

08 July 2013

Ambush in Bartlette: Chapter 15

Bo Ross sat in his patrol vehicle, in the parking lot of the Ezee Stop in Yared. It was three a.m. and the store was closed. In fact, everything in the entire county was closed at this time of night. Still, someone had to be out on patrol and the midnight to eight a.m. shift fell to him and two other deputies. Prior to “the incident” Bo had been the chief of patrol, but afterward the Sheriff decided there was too much publicity and too many distractions for Bo to continue in that job and reassigned him as shift leader on the midnight shift.

“The incident” was the term the Sheriff used to describe the day Bo was almost killed. In all the movies the person shot suffered traumatic memory loss, but Bo remembered the incident about as clearly as anybody could. The Sheriff had saddled Bo with three of the least reliable deputies in the department for court security. In fact, the reason that he did not escort the Pahl brothers back to their holding cell personally was that Judge Isom called Bo back in chambers to voice his displeasure. By the time Bo left the judge's chambers Boyd and Carr had already taken everyone out of the courthouse.

Bo followed as quickly as he could and found everyone lounging in the alley. He walked off the porch and started over to the prisoners, while he told Carr to clear all the civilians out of the alley. He had just started walking over to get the Pahls moving toward the door to the Sheriff's Department when there were a series of loud noises and the Pahl brothers were both thrown backward into the building behind them. More shots followed and the civilians scattered. The two other deputies took cover behind the propane tank that provided fuel to heat the courthouse.

Bo turned and ran back to the courthouse door. It was the only way out of the alley that could be reached without letting the guy with the firearm have a clear shot. He had just gotten his key in the door when a sledgehammer hit him in the back - several times. He was slammed forward into the door and fell off the side of the porch behind bins in which trash and recyclable materials were kept. At first he was just stunned. Through a haze, he heard more gunfire and then there was a huge explosion which he felt more than he heard.

This time he was knocked out. When he came back around all of the plastic bins were on top of him and he was covered in trash. He dug out from under them and found himself in Hell. A huge how was blown into the side of the Sheriff's Office and there were flames everywhere. Everywhere he looked in the alley he saw a man with multiple bullet wounds or serious burns. He grabbed the first person he came to, one of the Pahls' attorneys, and started hauling him back to the safety of the courthouse. When they got up on the porch Bo's keys were missing. He looked around but they were nowhere to be seen, so he just started going back and grabbing other men and laying them on the porch in front of the door.

When he had all the casualties around the door, he started banging on the it and yelling for Sergeant Qualls. He didn't know how long it took, but eventually Judge Fleming opened the door and Bo started moving all the casualties inside. A couple of Mount View police officers arrived, but the fire had gotten too intense for them to come down the alley to help. After he got the wounded inside, he started perform first aid as best he could although he doubted any of it had actually helped except for the tourniquet he put on Attorney Lasley's arm.

When the judge touched Bo's arm he realized that the gunfire and explosion had made him almost deaf. Judge Fleming was yelling something Bo could barely hear as though he were at the end of a long tunnel filled with a ringing silence. After a couple seconds, Bo shook his head, told the judge to call for help, and told him to get Qualls to check to see if anyone else needed help. Then he went back to trying to render some sort of first aid.

The Paramedics took a long time to arrive and they pulled Bo off, gave him a quick once over, and sent him off to side, out of the way. He sort of collapsed once he sat down in a corner with nothing to do and the next thing he really remembered was being helped onto a gurney so the medics could transport him to the hospital.

Now the FBI and State Police were saying that the whole thing was a plot to kill him by five of his fellow deputies. Worse, Brad Dollerby, the local Commonwealth Attorney, had decided that he was going to prosecute everyone involved in the incident himself. Even worse, the Sheriff was circling the wagons and seemed to be taking steps to marginalize the people he did not trust in the department. And, clearly Bo now fell into the untrustworthy category.

It did not sit well with Bo that someone had shot him and he was getting blamed. It did not sit well at all.

02 July 2013

Ambush in Bartlette : Chapter 14

Brad sat in the third pew on the right hand side of Mount View United Methodist.  The service had been going on for well over ninety minutes by now and showed no signs of letting up.  Ever since the new pastor arrived the services had averaged two and a half hours.  Brad did not care for the young man.  The previous pastor, Brother Carl, had been unpretentious, friendly, and (most importantly) had kept his services somewhere between an hour and hour fifteen minutes.  The new pastor, Elder Todd Brooks O.P., was young, passionate, charismatic, and driven to bring everyone to Jesus.  His services lasted at least two hours and his sermons were usually the greatest part of that.  In fact, the young Elder was somewhere around the sixty minute mark of his current sermon and showed no sign of slowing down.  He was going on about something having to do with prayer and the Apostle James.  Brad found himself unable to concentrate on the fine points of the sermon.

He glanced at his watch. It was ten thirty-six. In less than half an hour mass would start at Saint Berlinda with Maggie sitting dutifully on the third row of wooden chairs. Before Elder Todd Brooks O.P. came to town, Brad used to go to services at Mount View United Methodist at nine and then meet Maggie at Saint Berlinda for mass. However, faced with a choice, Brad was a Methodist and he would go to his church rather than hers. Besides, Mount View United was the biggest church in the county and Brad figured his membership was worth at least two hundred fifty votes every election. In a county where only about five thousand people voted during the last presidential election, two hundred and fifty votes were precious.

Things with Maggie were almost back to normal. She sniped at him a little this morning because he would not be at Father Tolton's final mass at Saint Berlinda. Brad smiled a little. His wife was starting to return to herself around him and he would soon be rid of this troublesome priest.

The most surprising thing had been Abby's reaction to all of it. Of course, living in the same house as they did she heard the whole fight between her daughter and Brad and she thought the way they were acting was silly. "My Charley and me used to have fights bigger than that at least once a week and he wasn't a fan of priests either. Sometimes I think the only reason he ever went to mass was so he could stand outside and smoke with his buddies in the Knights afterwards. Anyway, the way you two were before wasn't natural. You have to blow up once in a while to relieve some of the pressure. Otherwise you'll just start to quietly hate each other. Now, get over yourselves." Abby gave that speech after a couple days of watching them walk on eggshells around each other and she had not said a word about it since. However, she still rolled her eyes when she saw them being careful around each other.

Meanwhile, as his domestic life came back together, the county fell apart around them. An army of federal agents and state troopers hit Bartlette County on Tuesday morning. It seemed like half the town of Yared was arrested, including everyone on the town council and the three officers at the top of the six person police force. Then they arrested two deputies from the Sheriff's Department, Sergeant Ian Minor and Captain Jeff Sargent. When armed men broke in his front door, Jeff scrambled for the rifle in his closet and they tazed him in the back just as he was pulling it out, causing him to fire into his ceiling.

Brad only learned about this when he was awakened by a call from the Sheriff. Sheriff Minton was beside himself. After Brad got the Sheriff settled down he got a quick shower and headed into the office. Then he started making calls. Every call to FBI Special Agent Mazzota went straight to voicemail. When Brad called the local State Police post, the phone was answered by Kyle Dotson, the First Sergeant. Kyle was polite, but he was clearly under orders not to talk to anyone in local law enforcement. After a couple minutes Kyle made an excuse and hung up. Brad was left sitting in his office at six-thirty with nothing to do.

Before seven-thirty, the Sheriff called four times. Each time he was more worked up, but had no new information. At eight, Brad started to walk out of the courthouse to go down the street to get breakfast, but when he opened the door and saw the street flooded with police cars he went back inside, called the Sheriff, and found out that every deputy had been called in to the office.

By nine both Yusif and Paula were in the office. Both had heard about the arrests on the news and had questions, but Brad knew no more than they did. He tried calling the Attorney General's office in Richmond. He got fobbed off on some flunky who told him that they would get back to him "as soon as practicable." Then, he made another fruitless attempt to call Special Agent Mazzota. It was at this point he decided to treat the situation as a political problem rather than a law enforcement one.

He started at the top and worked his way down. Brad headed Senator Salyer's last campaign in far Southwest Virginia and his first call went to the Senator's office in D.C. Surprisingly, he got through to her on his first call. She was watching the news herself and wanted him to tell her what was going on. When Brad told her he was being frozen out she seemed to take it as a personal affront. Her voice was tinged with determination and a bit of anger as she promised him that someone in the FBI would be in contact before the day was over. After finishing that call, Brad began calling every delegate or senator he knew in Virginia's General Assembly. Once he mentioned the fact that Senator Salyer was helping with the FBI, quite a few of them promised to help with the Attorney General and the State Police.

At around eleven there was an announcement made to the press by the U.S. Attorney for the Western District of Virginia, but no one had contacted Brad. Finally, at around three in the afternoon, a call came in from Captain Fraley at the State Police Division headquarters in Wytheville. The Captain had direct orders from Superintendent Boles to brief Brad on the operation and if he could come to Wytheville the next morning the State Police would fill him on everything they knew. Shortly after that a call came from a D.C. number and a Special Agent Sanderson told him that Special Agent Mazzato would be at the Wednesday briefing to answer any questions he had for the federal government.

The Wednesday morning briefing was not a friendly affair. Nevertheless, it was eye opening. Before they began, Brad was required to sign a document stating that he would not disclose the information in the briefing to anyone in local law enforcement – including the Sheriff and his own deputy prosecutor. Then the FBI took over and briefed Brad.

There was nothing terribly surprising about the first part of the briefing. The Poplins were involved in a large scale drug ring which enjoyed their protection in Yared. Everyone in Bartlette County knew the Poplins were crooked, although their level of involvement in a multi-state drug ring was more than Brad had thought them capable of. He knew they were involved in cock fighting and gambling on high school football, but never suspected they were doing much more than providing a safe haven for small time drug dealers in town. Still, it was not that he thought large time drug dealing was beyond their desire; he had just thought it beyond their grasp.

In fact, the Sheriff's refusal to do anything to clean up Yared was one of the main frustrations of Brad's time as Commonwealth Attorney. As it turned out, the State Police and FBI were also less than impressed by the Sheriff's inactivity. For a long time they suspected he was involved. However, after planting false information with the Sheriff three times and waiting to see if there was any reaction from the drug ring, they were eventually satisfied that he was not passing information to its members. Their conclusion was that the Sheriff was either not willing to risk the political fallout of cracking down on Yared or that he was lazy – probably both.

However, they were convinced that the Sheriff's Department had a number of corrupt deputies. Of course, Brad knew which deputies had been arrested, but it was still something of a shock when they told him that Jeff Sanger was the person who decided that Bo Ross had to be killed. Apparently, he thought was that with Bo out of the way he would have the inside track to become the next sheriff. Ian Minor, Dave Jordan, and Oscar Mickleson had each pointed a finger at Jeff.

When Brad pointed out that the former deputies and Yared police officer lacked much in the way of credibility, Agent Mazzato played a number of recordings which the FBI recovered from Ian Minor's phone. The man had recorded a lot of conversations with his fellow conspirators. In many of them there were discussions about what Jeff wanted done and there were two in which Jeff told Ian he wanted Bo out of the way so that he could become sheriff. It was damning.

The first attempt to kill Bo had been at a trailer on Baylor Ridge. They waited until the other two deputies on duty were tied up elsewhere and then called in a domestic disturbance. With everyone else busy, they knew Bo would have to respond himself. The plan was to kill him and blame it on the man who lived in the trailer. However, Bo got the call while he was getting some coffee with Trooper Pillay and, bored at one in the morning, the trooper decided to back him up. When the deputies saw two cars arrive with flashing lights and realized the second was a state trooper they retreated into the woods and left.

The second attempt to kill Bo was more complicated. The Pahls were coming to trial and everyone knew the Sheriff would assign Bo to look after court security for such an important case. Technically Teddy Qualls was the bailiff, but he was over sixty years old and retired on duty. Generally, Judge Isom just let him sit in a chair and doze during court as long as the Sheriff sent over help during serious cases.

It was easy to get Carr and Boyd assigned as court security. The Sheriff had no money for overtime and everyone knew a jury trial would mean working extra hours. When Boyd and Carr volunteered it saved the Sheriff from forcing someone else to work without getting paid.

According to the FBI, there were two plans. The first called for Carr and Boyd to take the Pahl brothers from the courthouse, but not deliver them to the holding cell in the Sheriff's Department. They would stop in the alley and give the Pahl brothers a couple of cigarettes to smoke. After some time, Bo would come out of the courthouse to see what the delay was. As soon as the door closed behind Bo in the alley, Minor and Jordan were going to open fire. If they could get clear shots they would shoot the Pahl brothers. If there was no clear shot they would shoot over everyone's heads. However Bo reacted, once he turned his back on the deputies in the alley, Carr was going to pull out an old pistol he had taken during a search of the Pahl house and shoot Bo in the back. Everything was going to be blamed on an escape attempt by the Pahls.

Unknown to Carr and Boyd, the actual plan was for everyone in the alley to die. Minor and Jordan would start by shooting the Pahls. Then, as soon as they saw Bo go down they would open fire on the deputies as well. They were also going to shoot a hole in the propane tank in the alley and set off a fireball to destroy evidence and stun anyone still alive so that they could walk down the alley and finish the job.

However, once time came to put everything in action, things starting going wrong. When the deputies started to take the Pahl brothers out of the courtroom their attorneys insisted on walking with them. The deputies refused at first, but Grant Lasley started to throw a fit and Teddy Qualls told them to let the civilians walk with them. Qualls was a sergeant, and Bo was back in the Judge's office at the time, so the deputies had to let the civilians come with them. They stopped in the alley as planned with a herd of people instead of just the two prisoners. The two deputies took a position on the side of the alley next to courthouse, leaving the others clustered on the side next to the Sheriff's department.

Bo came out about fifteen minutes later. Minor and Jordan were in a car in the parking lot and as soon as Minor saw the door close behind Bo he pulled the car up and Jordan opened fire from the back seat with an AR15. He sprayed fire at the Pahls and the civilians. When Bo ran to open the door to the courthouse Carr shot him in the back four times. Three of those bullets hit the kevlar vest Bo was wearing and, although the vest held, the force of the bullets slammed Bo into the door and knocked him off the porch behind the trash cans.

While that happened, Minor got out of the car with his Stevens 200 30-06 and fired four shots at the propane tank in the alley. One round missed entirely and one hit at enough of an angle that it ricocheted into the ground. However, two of the bullets struck true and propane spewed into the alley in a white cloud. Jordan kept firing the AR15 to keep everyone pinned down and hoping to set off the propane. After a few seconds they realized gunfire was not going to set off the gas and fell back on their backup plan. Minor had a street flare ready; he lit it and threw it into the alley.

The explosion was much larger than anything they had planned for. Special Agent Mazzota spent several minutes trying to explain the forensic lab's explanation for the size of the explosion, but most of it went over Brad's head. Somehow the weight of the gas, the heat of the day, and the enclosed area all combined to create an explosion which tore into the Sheriff's Department and started secondary fires. It also scared the hell out of the shooters. They jumped back into the car and took off.

Then they began the coverup. They drove the car, which had been purchased for a couple hundred dollars cash from a man in Kentucky, out to an old strip job and set it on fire. After that Minor drove to Pikeville, Kentucky where he would claim to have spent his day off shopping and eating at Jerrys. Jordan was supposed to do the same thing in Bristol, Virginia. However, a state trooper recognized the "Don't tread on me" flag painted across the entire tailgate of Jordan's truck and chased him down to tell him about the explosion. Thus, an hour after causing the explosion Dave Jordan was on the scene investigating it.

After they realized that the people in the alley survived, the conspirators became hypervigilant - looking for anything that might signal someone knew what they had done. The appearance of an unknown attorney trying to speak privately with Yusif spooked them. That was the reason Jordan went to Roanoke and beat the attorney to within an inch of his life. And it turned out to be for nothing; the attorney had nothing to do with the murders. He had been hired by the Democratic Party of Bartlette to feel out Yusif as a possible candidate for Commonwealth Attorney in the next election.

Brad smirked to himself. If they'd just approached Yusif directly that poor guy in Roanoke wouldn't be missing a couple teeth right now.

In any event, the attack in Roanoke triggered the reaction by the feds. When Brad left the State Police office the only question in his mind was how many people he would be charging with capital murder.