30 August 2019

It's only 23 years 11 months too late for the court to have jurisdiction.

Scott et al. over at Simple Justice appear to be upset at a judge for obeying the law: "So what if there’s no law enabling the judge to do it if both sides agree?"

Let's back up for a second and look at what this is all about. A trial judge in Missouri refused to reopen a 24 year old case which the elected prosecutor and a defense attorney moved for a new trial. This was clearly correct under the rules of the Supreme Court of Missouri:

29.11. Misdemeanors or Felonies - After-Trial Motions. . . (b) Time for Filing Motion. A motion for a new trial or a motion authorized by Rule 27.07(c) shall be filed within fifteen days after the return of the verdict.

All the judge had to do when the motion was filed was issue an order stating "Under Rule 29.11(b) this court has no jurisdiction. Case dismissed."

The prosecutor was obviously trying to act contrary to the law. Any trial lawyer who has practiced for any period of time knows how long the trial court maintains jurisdiction after the case is completed. After that the remedies are basically the same everywhere: habeas corpus or pardon. 

Habeas may be a dead end here. According to a commentator on Scott's post, the convicted man had already filed a habeas in 2003, alleged the same things the prosecutor is currently alleging, and failed after taking it all the way to the Missouri Supreme Court. Title XXXVI, Chapter 532 of Missouri's code governs its habeas procedures and 532.040 states
 532.040.  Second writ not to issue, when. — Whenever an application under this chapter for a writ of habeas corpus shall be refused, it shall not be lawful for any inferior court or officer to entertain any application for the relief sought from, and refused by, a superior court or officer.
I've not researched Missouri case law on this, but that reads like taking it to the Missouri Supreme Court may forbid anyone from addressing the same issues at a level below the highest court. In any event, courts are loathe to reopen the exact same issue again and again and again for fairly obvious reasons. There are people out there who will file fifty-two habeases to get out of their jay-walking conviction. Unless there's some impressive new evidence, the fact that the new chief prosecutor doesn't believe in an old conviction is fairly worthless in a court of law.

That leaves the governor's pardon power. Missouri's constitution states in Article IV section 7
Section 7. The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to provisions of law as to the manner of applying for pardons. The power to pardon shall not include the power to parole.
The governor could, without a doubt, pardon the person at the core of all this if he believed that person innocent. However, it is unlikely that the Democrat Prosecutor of St. Louis who reached a deal with the former Republican Governor to drop a felony charge against him if he resigned and is being investigated for her conduct in that prosecution is likely to work well with the new Republican Governor.

So, she had one workable option which is non-viable for political reasons, one possible option that would require a lot of work and might be bounced as redundant, and one option doomed by law. She chose the one doomed by law.

I'm not saying that she's alone in causing this kerfuffle. As I said above, the judge could have ended all of this at the beginning with a short, non-newsworthy order. Instead, she appointed the Attorney General to stand against the motion to reopen a case that had been foreclosed by law for at least 23 years and 11 months. You can't tell me that the trial judge didn't know the 15 day rule and needed more attorneys to be involved in order to count to 15. And then she issued a written opinion covering all the potential sins and perceived weaknesses of the prosecutor's position. No matter how well written and reasoned that was not going solve anything.

The prosecutor's office has promised an appeal. That's interesting because, as best I can tell under sections 547-200 & 547-210 of the Missouri Code there's nothing that authorizes such an appeal. I wonder whether the Missouri Court of Appeals will say "This court has no jurisdiction to hear your appeal. Case Dismissed." Probably not. Appellate courts can't say "Boo!" without a ten page opinion.

29 August 2019

The Court of Appeals sic'ed Me

I'm the guy in my office who gets tasked with writing most of our petitions for appeal. It's not too much of a burden since these don't happen all that often because prosecutors can only appeal under very limited circumstances. Anyway, recently I petitioned in Commonwealth v. Smith and the Court of Appeals was kind enough to accept the appeal on three of the five issues I raised. I was satisfied that some of my semi-brilliant legal research and writing had paid off. Then, while I was basking in my semi-glory, I read one of the errors accepted:
The trial judge erred in ruling that snipe hunting was legal in Virginia on 12 June 2017 [sic] as long the defendant was wearing a flannel shirt.
They sic'ed me! What the heck?

For those of you who don't know what "sic" means, its official meaning is "intentionally so written used after a printed word or passage to indicate that it is intended exactly as printed or to indicate that it exactly reproduces an original." In reality it means "I'm writing this erroneous piece of error exactly the way the poor benighted idjut wrote it."

OK, let's discuss why I would write a date in a concise manner that nobody can possibly misunderstand. It's because it's a concise manner of writing a date that nobody can misunderstand.

There are all sorts of ways to write dates. 12/6/17 and 6/12/17 mean the same exact thing depending on which continent you grew up on. June 12th, 2017 is unwieldy. If I had my druthers, I'd write 12JUN17 like the Army taught us to because it was entirely unambiguous. However, I compromise some and write 12 June 2017 because otherwise I expect to get sic'ed by lots of people who will use more ambiguous and unwieldy formats out of habit and societal norms. Bah humbug! There's nothing to sic here.

Now I'm tempted to see what I can write as a date and slip into my next petition for appeal. I'm leaning toward "In the year of Our Lord Two-Thousand and Seventeen, on the Twelfth day of the Sixth month - named in the vernacular after the pagan goddess, Juno." Or maybe I'll use dates ad urbe condita. Even better, because the judges could possibly, perhaps get a wee bit upset with me using the founding date of Rome, maybe I'll use לבריאת העולם or  التقويم الهجري . Lets see them ding me on one of those without triggering the PC Police.

Now all I have to do is go freshen up on my Hebrew and Arabic so I can remember how to write dates in them again.

08 August 2019

Detaining Car Passengers

via nbc15.com
Every so often we have to go back and cover well trod ground. This week I've had to face the question of whether an officer can detain the passengers in a car when he makes a legitimate stop of the car. I thought everyone understood that an officer can detain everyone in the car, but apparently some people haven't gotten the memo. So, now I get to go back and research it all over again.

A useful case to start with in Virginia is Thomas v. Commonwealth57 Va.App. 267 (2010). In this case, the Virginia Court of Appeals was kind enough give us a list of all the things that an officer can do during a legitimate stop:
• to obtain the registration for the vehicle and request the identities of its occupants,
• to seek radio dispatch confirmation of the information obtained from the vehicle occupants,
• to detain Thomas, a passenger, during the duration of the stop,
• to ask questions unrelated to the traffic violation,
• to order the driver and Thomas out of the vehicle,  
• to walk a drug-sniffing dog around the vehicle,
• to seize Thomas's handgun the moment they saw it
  Of course, this wasn't the first case in which the Virginian appellate courts had ruled passengers could be detained. As early as 1998 the Virginia Court of Appeals ruled that "police officers may also detain passengers beside an automobile until the completion of a lawful traffic stop."  Harris v. Commonwealth, 27 Va. App. 554, 562 (1998); see also McCain v. Commonwealth, 275 Va. 546, 553 (2008).

Ultimately, however, the basis of the ability of the officer to detain passengers during the stop of a car comes from a US Supreme Court opinion, Brendlin v. California, 551 U.S. 249 (2007):
An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.. . . . . .What we have said in [prior] opinions probably reflects a societal expectation of unquestioned police command at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission.

Reading through the various cases, it seems fairly obvious that the officer's ability to detain passengers was long assumed, because at first the argument seemed to be whether the officer could make them leave the vehicle while it was legally stopped and hold them outside the vehicle. But, of course, nothing can exist only in common sense. Eventually, there have to be court opinions to tell us what we already know.