31 January 2004           
Ken Lammers

New Posts over at JuryLaw.

As with DeathLaw, postings will be more sporadic in this sub-blog and I will post notices here when they are up.
Ken Lammers

Suing for $1.5 million because the cat the librarians kept as a pet scratched an assistance dog.

$1.5 million? Okay, let's assume that the cat totally disabled the dog (not the normal result in the confrontations I've seen between cats and dogs). Let's assume your preferred breed of assistance dog is the rarest of breeds and the puppies cost $10,000 apiece. Let's assume that the breed is dumb and stubborn and takes two years to train with it's own full-time, personalized trainer at $75,000 a year. $1.5 million?

So what's that leave? Pain and suffering for the owner? If you're psyche is so frail that you cannot understand and deal with the fact that cats and dogs sometimes get into confrontations maybe you shouldn't go out into the world. There are cats all over out there.

And does anybody believe the cat started this? That runs contrary to most people's experiences. The only time I have seen my cats aggress against my dogs was when the female had her first litter. For the first month or so I think she would have attacked a black bear if it was stupid enough to get near that kitten.
Ken Lammers

Ashcroft tries to bluff back Senators who are trying to fix the PATRIOT Act.

Here's a nice bit of hyperbole: By returning the law to its former state (and in some cases only moving it closer to its former state) "Ashcroft . . . said the legislation would "make it even more difficult to mount an effective anti-terror campaign than it was before the Patriot Act was passed."

The sky is falling! The sky is falling!
Ken Lammers

An article urging the feds to resume testing people for drugs as they are arrested.
30 January 2004           
Ken Lammers

Overpundit expresses concern that Thornton v. United States will result in a ruling which allows police to search any car wherein a person whom they have arrested was recently.

I agree with his sentiment and hope that the federal supreme court stops the insidious practice of allowing officers to search a car after a suspect has exited - when it is clearly not done in an effort to keep the officer from the car. This has been the law of the Commonwealth of Virginia since Glasco v. Commonwealth, 257 Va.433 (1999)(very similar facts to Thornton). Nowadays, if officers develop probable cause in your client's case the client had best not have even thought of being anywhere near his car or they're going in.

As I've stated before, I no longer believe that you have rights if you decide to drive a car. I'll keep fighting the rearguard action but the battle here is lost and the wasteland it has left behind is desolate.

And I state yet again, lest I get nastygrams, I do not blame the officers for this. The rules are laid out by the courts and legislatures. Most officers follow the rules and the responsibility for their actions lies at the feet of those who allow them.
Ken Lammers

The Legal Reader points to more blowback over the misuse of the PATRIOT Act.
Ken Lammers

TalkLeft points to a judge who believes that the Congress is trying to bully him into sentencing harshly and is now filming his sentencing hearings because he thinks the appellate court needs to see the hearings. He apparently is taking the position that when the appellate court agrees with the prosecution that the trial judge has not sentenced harshly enough it is resentencing the Defendant and needs to see the actual hearing.

It's interesting but I have to wonder whether the appellate court will actually view the tapes or if it will only read the briefs and listen to oral argument. If the Defense gets a copy I guess it could try citing to date-time stamps on the tape to force the appellate court to view the film.
Ken Lammers

Howard Bashman (How Appealing) is opening his own appellate law firm.

Good Luck.
Ken Lammers

Bryan Gates (I respectfully dissent) points to a case where a Doctor stared into the face of the Captain heading the local narcotics detail and told him to go jump off a bridge (after he had threatened to arrest her for refusing to do an internal search).
Ken Lammers

Over at The Curmudgeonly Clerk there has been some discussion of this post.

Actually, at first I took "unable to verify" as an admission that the dog had previously alerted when there were no drugs found. The officer understood the question, she just wasn't going to admit straight up that her dog makes errors. However, to state what I believe the officer's final position was (after 2-3 pages of transcript which I was too lazy to type in completely): when her dog alerted there might not be drugs present at that time but there was residue from prior presence which precluded the confirmation of drugs. Thus the dog does not fail; humans fail in not being able to confirm the presence currently or in the past. Police learn to make statements like this because they are too often rewarded for them by the courts who are looking for any reason not to suppress evidence. So the Clerk is dead on in his analysis.

Dedman suggests that perhaps people should be more careful of how their statements might be read once they are transcribed. That's a mighty high standard during the give and take of a trial. People just aren't thinking about the transcript during a trial. Here, the officer was trying her best to spin things her way to win with the trial judge and I was doing my best to make it obvious that she and her partner had violated the Fourth Amendment by searching my client's truck after the client had been judged not to have drugs, the dog had not alerted on the truck, and the dog had alerted on the passenger but upon a search of his person no drugs were found. The judge stopped us during argument, ordered a transcript and required us to brief the matter.1

1 In Va. State trial courts my suppression motion usually doesn't say much more than "They violated Client's 4th Amendment rights." This is because no more is required and the prosecutor is not required to answer my motion. I have offered more than once to pre-brief my motions if the Assistant Commonwealth Attorney on the other side will file a reply brief and not use any paralegals or interns to write the brief or research the matter (in at least one jurisdiction where I practice briefs seem to be written by the law student interns and the prosecutor, like as not, may come in arguing something entirely different than what is in the brief). No prosecutor has accepted this when I offered it.
Ken Lammers

Difficult to fence it is. Easily traced is it.

Okay, so you steal a Yoda statue. What are you going to do with it?
Ken Lammers

Joshua Claybourn provides A tale of 2 probationers.

Sadly, while I hope that the second person was truly reformed (and Joshua was clearly in a better position to judge then I am), this looks to me like two different ways of scamming the system. I think that few actually do the in-your-face thing. Far more likely is the second approach: I've found God. It's the biggest scam in the prison system. I'd say that perhaps 40% of my clients go to religion classes while they are in jail. Partly it's because they are bored and there is nothing else to do, partly it's because they can get certificates of attendance or letters from the person running the class to use in their sentencing hearing (or motion to reduce sentence), and sometimes there is genuine interest (one can hope). However, over time I've noticed that clients who know they are going away for 15 years, or who are on their 9th felony and know that judge Smith is going to give them two years no matter what they do, don't bother. Or at least if they are going they don't tell me.

Now, my perspective is different from Joshua's. I seldom see, and don't long remember, people who had one brush with the law and reformed. I see the recidivists - the people who find jail / prison unpleasant but are not deterred by its threat. It is my most sincere hope that some find their faith and move on to a better life. It's just that I live and work in a cynical world where religiosity is another pawn in the game. And we all recognize this. Arguing that "my client has found God" is seldom an effective argument during sentencing hearings or motions to reduce sentence because everyone in the courtroom has heard it so many times with people whom we all know that we will see back in the system within a year or two of sentence completion.

Thanks to Joshua for pointing me to a thought provoking post.

Dominus Vobiscum
29 January 2004           
Ken Lammers

I'm really starting to enjoy a couple of newer sites - Overpundit and legal fiction. I commend both to you.

Addendum: NO, I haven't turned into a bleeding-heart Liberal because I linked to someone who actually has the ACS linked on his site. I often disagree with the author (my philosophy is probably closer to feddie at Southern Appeal) but that doesn't mean the site is not worth a read. It's well reasoned and well written and has the potential to become a significant site in the blawgosphere.
Ken Lammers

Confusion and dissension in the federal ranks after a terrorism conviction.
Ken Lammers

If you advertise your prostitutes in a two page Yellow Pages ad the police might catch on eventually.
Ken Lammers

Virginia is moving toward a clergy snitch rule. It excludes the confessional but is still somewhat worrisome. What happens if a priest suspects something but before he can report anything the perpetrator goes to confession? Or what if someone tells the priest during confession and the priest notices indicators afterward?

And the $64,000 question: can the exclusion of evidence acquired during the sacrament of confession be found to be a violation of the constitution because it favors those denominations with such a private sacrament over faiths which have none (or worse require open confession in front of the congregation)?
Ken Lammers

Prosecutors in Colorado are subject to term limits.
28 January 2004           
Ken Lammers

From a transcript of a case for which I am writing a brief:

[About a drug sniffing dog]

Me: Do you know how often your dog gives false positives?

Officer: He doesn't give false positives. We're just unable to verify the alerts at that time.

Ken Lammers


Hey! When did these guys come in and check out my apartment?
Ken Lammers

Leaving a gun where it could be found by a child - who then kills himself with it - is not felony child abuse.

For what it's worth, I think that is correct and Judge William Broadhurst is to be commended for making the tough call. Not many people are made happy when you follow the law rather than the instinct to punish, even when it's an accident.
Ken Lammers

The Justice Department has stopped testing newly arrested Defendants for drugs because of budget constraints.
27 January 2004           
Ken Lammers

This just in: Foxes deny that anything has gone wrong while they have been guarding the henhouse.

The Justice Department investigated itself and determined that it had not violated anyone's civil liberties through the PATRIOT Act. Of course, since it's Justice's position that the PATRIOT Act doesn't violate the rights of citizens it would seem to be a pretty circular conclusion.
Ken Lammers

Opening statments in the Martha Stewart case.
Ken Lammers

If you try to escape from jail you should probably make sure you can fit through the window first.
Ken Lammers

New post at DeathLaw

Ken Lammers

Fellers v. United States

The Supreme court reverses the lower courts by ruling that questioning before Miranda violates 6th Amendment but remands to the Circuit Court for a decision as to whether that means the post-Miranda confession must be supressed.
The Court of Appeals erred in holding that the absence of an "interrogation" foreclosed petitioner's claim that the jailhouse statements should have been suppressed as fruits of the statements taken from petitioner at his home. First, there is no question that the officers in this case "deliberately elicited" information from petitioner. Indeed, the officers, upon arriving at petitioner's house, informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators. 285 F. 3d, at 723; App. 112. Because the ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of petitioner's Sixth Amendment rights, the Court of Appeals erred in holding that the officers' actions did not violate the Sixth Amendment standards established in Massiah, supra, and its progeny.

Second, because of its erroneous determination that petitioner was not questioned in violation of Sixth Amendment standards, the Court of Appeals improperly conducted its "fruits" analysis under the Fifth Amendment. Specifically, it applied Elstad, supra, to hold that the admissibility of the jailhouse statements turns solely on whether the statements were " 'knowingly and voluntarily made.' " 285 F. 3d, at 724 (quoting Elstad, supra, at 309). The Court of Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner's jailhouse statements on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard. We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue in the first instance.
It's an interesting opinion but doesn't appear all that useful without an answer to the second question. You have to wonder if the appellate court will take the hint.
Ken Lammers

Wearing a bumblebee costume to court?

I guess that makes it pretty darn hard for me to complain about my clients showing up in a Packer jersey and jeans about 6 times too large.
Ken Lammers

Part of the PATRIOT Act shut down because it is unconstitutionally overly broad.
26 January 2004           
Ken Lammers

A Week in the Life of a Criminal Defense Lawyer:

Monday - MLK Day ~ No Court

Tuesday - I have to go to court in the morning for a client who I know has hired another attorney. The client had told me a month earlier that he had hired this attorney but the attorney never sent me an order of substitution. So I go to court sit there for 15 minutes, walk up, and am withdrawn from the case. In the afternoon I come back to court and get my client's possession of heroin case dropped by the prosecutor because the lab analysis showed that the substance the officer seized, relying on his training and knowledge gained from years on the street, wasn't any type of illegal substance. I get another client's driving on a suspended license charge continued so that she can get her license before she faces the court.

Wednesday - I get up and am in the middle of getting dressed for the general district court's 8:30 docket when I look at my PDA's calender and realize that I'm actually due in court at 8:15 because it's a return (to make sure my client is paying restitution) and the judge involved has his returns start 15 minutes before court is scheduled to begin. In that instant I go from being on schedule to being at least 10 minutes behind. I rush out the door and burn rubber - of course, never exceeding the speed limit. I even tie my tie at a stoplight on the way in (the disturbing thing is that it turned out better than it usually does when I tie it in front of my bathroom mirror). I get to the courthouse 5 minutes after docket was to begin; I'm feeling pretty good because dockets never start on time so I'm fairly sure nothing will have taken place yet. Then I look at the bulletin board where the docket is posted. The Judge has changed the time he does his returns from 8:15 to 8:00 a.m. and nobody bothered to tell me. I rush down to the courtroom and talk to the deputy at the back door who tells me that my client had already been called, that he had paid his restitution, and the client was released from supervision. I check this - it's absolutely correct - and then I go upstairs to the circuit court and wait until the docket there starts at a little after 9:00 a.m.

In the circuit court I have a client who had been convicted by the general district court, upon a plea of guilty, of assault and battery for attacking and choking his sister-in-law. He'd received the maximum penalty that court could give him (12 months) and exercised his absolute right to appeal the decision to the circuit court and get a trial de novo. I go and talk to the prosecutor, angling to get an offer which might get my client a couple months less in jail, but the prosecutor refuses to deal. Then I offer that we both proffer the testimony on my client's plea of guilty but the prosecutor declines that offer as well: "If I don't put her up on the stand how am I going to get the 12 months again?" Okay, fine. My client pleads guilty. The prosecutor puts the victim on the stand to testify how my client had run across a school lobby and started choking her until she was almost unconscious, then tossed her aside, and ran off. She swears that there were no problems between her and my client. Then I put my client on the stand to testify about how he had been jumped the night before by three guys who had cut his face and told him to stay away from his sister-in-law. I take a pair of panties out of my folder and holding it with my pinky and thumb ask him if he recognizes it. "Yes sir, that's a pair of her panties which they threw in my face." Me: "Your Honor, I don't have a bag or anything, if you want to see them . . ." Judge: "That's okay Mr. Lammers, I'll let you hold on to them." Client then testifies that he had gone to ask her why she sent them and lost his temper when he saw her. In the end the judge sentences my client to 6 months in jail rather than the 12 months he had received in the lower court.

I eat lunch with a deputy who works on the road (serving papers, evicting people, etc.). Being a good guy he tells me a shortcut to the rural county courthouse I am going to that afternoon. I jump on this road and drive along for miles and miles as the road twisted and turned through the Virginia countryside. It kept getting smaller and smaller and smaller. Finally, the last couple of miles were about a car and half wide with no lines at all alternating between areas which had been covered with sloppily laid blacktop and areas where you dodge deep potholes (which my '89 Saab just ain't gonna handle). But in the end it did get me there about 15 minutes quicker. It might have even been quicker if I hadn't got caught behind that tractor for a mile or two.

My client in the rural county is appearing before the court for a sentencing hearing having previously pled guilty to 3 counts of distributing small quantities of cocaine. I arrive a hour and half early so that I can go over his presentence report with him (as is fairly common, the report showed up too late for me to get to the jail and go over it with him). It takes all of 15 minutes; if I hadn't come early I'm sure that discussion would have taken an entire hour and half. So I spend the next hour plus talking to a deputy and a couple of guards from the jail until court opens at 2 p.m.

When the case is called I stand and point out to the judge my client's serious medical conditions. I point out that he was caught dealing minor quantities of cocaine. Then I point to a statement my client made to the probation officer as to his plan for self help after completing his sentence: "I don't make mistakes twice, I'll never do that again." I then proceed to argue to the judge that he should take my client at his word: "You see that the probation officer lists Mr. Smith's IQ at 76. Well, I just don't buy it. We can see from the record that Mr. Smith learns and doesn't make the same mistake twice. In '85 he was convicted of felony larceny [edit. comment: he stole a dog from the local pound - any theft of a dog is a felony in Va.] but he never made that mistake again. In '92 his charge of felon in possession of a firearm was taken under advisement and we never see him making that mistake again. Now we see him before the court on the only drug charge ever on his record. I tell you he's learned this lesson just like he did previously and it is obvious that a long sentence is not needed to drive the point home. I ask you to take him at his word and sentence him to as little time as possible." The judge listened politely and then proceeded to sentence my client to ten years on each count with eight years suspended, all three sentences to run concurrently.

As I am driving back from court I check my messages and there is one from the federal clerk's office. I call back and get assigned a case as I'm driving down the highway. At one point I just have to pull off the road because the clerk is giving me a lot of info and it's kinda tough to drive, write stuff down, and hold the cell phone all at the same time (for the record I was not writing while I was driving).

Thursday - I go to court for a client's preliminary hearing on a felony DUI (3 DUI's within 6 months) and her trial on a misdemeanor suspended license charge. After the hearing, I go to appeal the misdemeanor so that there is one sentencing event in the circuit court. I wait for the clerk to complete the paperwork of the person in front of me (who has already left). And I wait. And I wait. And I wait. And I wait. Meanwhile, the people who have been sent to the clerk by the traffic court pile up behind me. 5 people, 10 people, 20 people, 30+ people - the clerk is off in her own little world and doesn't even notice. Finally, the clerk walks back over to the window and realizes that if she doesn't move fast the line is going to back up into the courtroom. She shifts into fourth gear and gets my client's paperwork done in about three minutes. A forty minute wait for three minutes of work.

In the afternoon I have a client charged with driving on a suspended license. It's a particularly nasty form of driving suspended which will take my client's license for a year because he was convicted of a DUI three years prior. My client had been making efforts to get his license back - which usually leads to conviction under a statute which doesn't take his license - so I make a motion to continue the case. The judge won't have any of it. So then I run down to the law library and spend the next hour or so looking for any angle I can find to try to get this thrown out or reduced. I spend most of the time looking up a case which I think will prove my client not guilty. Bingo! Then I look a little further and figure out that the case has been made irrelevant by changes to the statute. Crud. Client has to plead guilty but he's happy with his 10 days in jail (weekends) and not all that concerned about having his license suspended even further.

- I go off to another county to represent a client on a show cause for not paying off a fine. While waiting for the case to be called I see a lady walk up to bench. On the other side a bunch of prison guards and a detective come up. The lady then spends the next ten minutes or so trying to get the judge to assign an attorney to her case but he won't do it because a prior judge has decided she doesn't qualify. The prosecutor, trying to be decent about it, tells the judge a couple times that he is not comfortable trying this woman without a lawyer. When that doesn't seem to do any good he points out to the judge that a certificate of analysis was filed late and the lady is entitled to a continuance; he points it out a couple or three times but the lady doesn't seem to get it. Then the judge pointedly asks her if she wants a continuance (twice); it's very obvious she has no clue what's going on and finally she says "no." At this point I stand up and volunteer to take the case pro bono. The judge agrees and gives me a few minutes to talk to the client and the detective. Proving that no good deed will ever go unpunished, the first thing the detective says to me is "I haven't got all the transcripts here, but I've got fifty pages here and I can get you the rest." Shortly after that conversation I go into the courtroom and ask the judge to grant a continuance which he does. Then he calls my next case and, despite my best efforts, refuses to give my client a continuance so that my client can get his fines paid. He points out that my client has had 5 or 6 continuances already over a 7 month period and there have been no payments made at all. I show him medical records from my client showing that he had congestive heart failure about six months ago and has only been back to work recently. The judge isn't having any of it. With my client almost crying next to me (in fake "whispers": tell him this - tell him that - what'll I do?), the judge sentences him to 30 days in jail but agrees that he can do the time on weekends if I can find a jail which will take him and sets his date to report off for a week.

In the afternoon I sit in my office waiting for clients to come in and two actually do. It's a miracle two clients have shown up two weeks in a row. Of course, the federal client came from 4 counties on the other side of Richmond so I spent the better part of a hour on the phone trying to get him to my office. Oh well, at least I know the feds will pay me for all my work.

Addendum: Matt comments on this post here: Stop the Bleating!
25 January 2004           
Ken Lammers

Riding a Pale Horse

Rather than doing the list of interesting cases involving murder and the death penalty here I have started a supplementary blawg DeathLaw.
Ken Lammers

Uber-technicality in California:

In Los Angeles the Public Defender's office is challenging every single misdemeanor charge in the city. The reason for the challenges is not because people might be innocent or subject to some massive due process violation; it's because the City Attorney may not have been technically qualifed to be elected to his post. Again, there is no allegation that this has effected the bringing of and/or prosecution of misdemeanors.

Even in California no judge is biting on this red herring.

Why do you do this? It can only make your office look foolish in front of the judges and engender hostility with the attorneys you must negotiate deals with each day. And you cannot actually think that you are going to win. Well, it is California . . .

From Southern California Law Blog.
Ken Lammers

Albemarle County Sheriff Edgar S. Robb must be congratulated for taking the proper stance in who should be chairing regional jail boards. Personally, if I were an elected official I don't know if I'd want the responsibility. But it is the right thing to do.

Regional jails are easy dumping grounds for prisoners who are trouble makers or who have serious (expensive and/or life threatening) medical problems. Once that prisoner is out of the Sheriff's local jail there is no elected official in the loop. So if Dr. Smith at the regional jail, in trying to weed out malingerers from those who actually need meds and with an eye toward his meager budget, withholds necessary medicine from a number of patients who are in serious need of it the local newspaper isn't going to be able to do an expose that points at the sheriff.

By standing up and saying that elected officials should be the ones who take responsiblity for the prisoners who have been placed in their care Sheriff Robb has shown himself to be a class act. A shame he's not in a county where I can vote for him.
Ken Lammers

I don't care how much you are provoked you gotta know that the wrath of God is going to come down on you if you burn a cross in someone's yard. How stupid can you be?

I'm not a fan of prosecutors having the ability to appeal results they don't think are severe enough. And I think a year was probably too severe (especially considering the other perpetrator was getting no time). Still, you have to wonder what the judge was thinking. The guy should have seen the inside of a cell for at least a week or two.

Another question which comes to mind is why were the feds were dealing with something this petty? Don't tell me that local law enforcement couldn't have dealt with these Huckleberries.
Ken Lammers

The Klan and Masks:

Okay, let me begin this by stating that I am one of "those people" whom the Klan despises (a "Romanist"). And I ain't got no use fer them either.

Still, this rationale for denying them the use of masks is disturbing:
The three-judge federal panel said the mask was not protected because it does not convey a message independently of the KKK's robe and hood.
. . .
"Since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and hood do not," the appeals court said. "The expressive force of the mask is, therefore, redundant."
I find that rationale more than a little disturbing. It's the equivalent of stating: "Mr. Lammers had a 6" St. Benedict crucifix hanging around his neck and a jacket with a large K of C 3d degree symbol on it. This clearly identifies him as a Roman Catholic. Therefore, we can restrict him from wearing a monstrance pin because it is redundant."

Yeah, I know it's a stretch but a precedent like that is always disturbing because it clearly restricts how a person might choose to express himself.

And no matter how hard the article tries to make a bunch of numbskulls walking down the street in masks the equivalent of yelling "Fire" in a theater it just isn't the same thing. Decisions like this - whether they rely on a "redundancy" argument or a "yelling fire" argument - are just ways of sticking it to a disfavored group. And the laws and decisions aimed at the disfavored group won't just dry up and blow away as time passes. After all, how much damage is still being done by the Blaine Amendment provisions which were put into numerous States' constitutions?
24 January 2004           
Ken Lammers

A judge trying to explain why it was okay for him to force someone to go to yoga classes for a year.
Ken Lammers

By popular demand the return of the most popular Blanton's Masthead.

BTW, if I haven't made this clear before, Explorer drives me nuts. Every single time I work on the format of this site I get it to work with Opera, Netscape, and Mozilla fairly quickly. And then I spend forever trying to get it to work with Explorer. AAAaarrrgggg!!!
Ken Lammers

No agreement on a plea deal for Rush.
Ken Lammers

You can't get away from the feds. Even if you're DEAD.
Ken Lammers

Does "party" mean use drugs or have a homosexual liaison?

Well, in Florida it can mean either.
Ken Lammers

"[A] woman was excused from jury service, then looked across the room at [Martha] Stewart before and blurted, 'I am a huge fan of yours. Good luck.'"

And for some reason this worried the prosecutor. ;-)

Actually, if I were the prosecutor I'd be more worried about the stealth juror who says to herself "Martha shouldn't be here and I'm going to say whatever I have to in order to make sure I'm on the jury so she can't be convicted."
23 January 2004           
Ken Lammers

In reference to my former post on Hilliard v. Commonwealth a reader asks:
I'm curious if you have any advice for your blog readers on the correct way to request a lawyer during an interview. If "I would like a lawyer here so I don't get in trouble" doesn't count as a request for council being present during interrogations, what does? Is there a catch phrase that must be repeated a certain way? Do you have to click your heels together three times as you say it?
Well, I tell my clients that they have to say exactly this phrase: "I will not talk to you without my attorney, Mr. Lammers." Anything less will be deflected by the officer: "Can't I have my attorney here?" Officer: "Sure you can but I just want to ask you a couple of questions. First . . ." While reasonable people would realize this is an attempt to ask for an attorney that's not the standard. The standard is that the Defendant must have made an undeniable assertion of his rights. If there least little equivocality Virginia courts will not recognize the assertion.

Of course, even if the Defendant makes the unequivocal assertion the police can come back later and try again and again and again - as long as they stop each time when the Defendant unequivocally asserts his rights. I've only had one officer do that to a client of mine but they can do it (at least as long as they don't try to question the Defendant about specific charges for which he has counsel assigned).
Ken Lammers

It looks like there may be a new federal courthouse built in Richmond, Virginia. It's probably a good idea. The old courthouse is spread out between two buildings with the courtrooms scattered throughout different floors in both buildings separated by various chambers and other offices. The building is definitely old and - while probably adequate at the time originally constructed - now has more business than it really has the capacity to adequately deal with. It still works because of the paucity of cases which are handled in the federal court. If a heavy docket ever hit that courthouse it would be a nightmare. Hopefully the new courthouse will have a better design with Magistrates all on one floor, District Courts on the next, etc.
Ken Lammers

In California they have peremptory strikes for judges? Gotta wonder how that works out. If you drop judge Smith two or three times he might not be very favorable to you if you are ever put in a position where you must try a case in front of him.
Ken Lammers

Found Around the Blawgoshpere:

(1) The Curmudgeonly Clerk is having an indepth discussion about statutory rape.

(2) The Legal Reader notes yet another case where anti-terrorism laws are being used against common criminals. Who didn't see that coming?
22 January 2004           
Ken Lammers

Thank goodness my high school was not a warzone which required armed police presence. Another reason why people who can leave Richmond do so when they have kids (or send them to private school).
Ken Lammers

The Jury:

Barbados is taking steps to strengthen the jury system while New Zealand will probably take two steps clearly meant to weaken it (having come to the conclusion that they can't trust some of the citizens all the time and all the citizens some of the time). You know, it's disturbing that a 13% hung jury rate would be attributed to a problem with the jury rather than (just perhaps) the prosecution not being able to prove its case adequately.
Ken Lammers

Remember a few days ago when I posted about how tacky it was that California localities were lobbying for the Scott Peterson trial? Courtesy of John D., here is an e-mail he received when he inquired (I include the entire letter so that I cannot be said to have skewed it):


I am sending you the email I sent to our members which I hope clarifies things. We were appalled at the impression created, as you were . (pasting below) Believe me, the impression created by the articles and edited news clips are far from the truth.

As you are all seeing/reading, the Peterson trial story has taken on a life of its own and many articles are continuing to say we "lobbied" for the trial and are excited about the opportunity of a trial generated by a terrible crime. Here are some facts for you:

We NEVER lobbied for the trial, and as Sheriff Horsley has said, you CAN'T lobby for a trial. What we DID do is send a professional note to the judge as soon as it was announced that we were a possible venue, saying that IF we were chosen, we would be happy to assist the media. We did NOT include promotional materials, nor did we attempt to "sell" the county or compete.

In terms of our reaction to the event, I have made a point in conversations w/reporters to say that our whole county mourns Laci Peterson and her son and that the crime was awful. (As a mother myself, the crime horrified me and not a day goes by I don't think about Laci's family.)

Unfortunately, we can't change what happened--the trial already exists--and it had to go somewhere. While we were stunned with the announcement of the move to our county, we are in the hospitality industry and no matter what brings people here--good news or bad--it is our job to take care of them.

Our area and hospitality industry can use a shot in the arm after the tough times following 9/11 and the dotcom downturn. If we were/are excited, it's because filling our hotels again can put people back to work, pave our streets, pay for police and fire and on and on. You all live here and you know how tough things have been.

This means no disrespect to the victim or her family and I am sorry if anyone interpreted it that way. We are in tough times.

In most conversations, the media have asked for an economic impact (anywhere from six to 16 million dollars) and then said, "wow, so what is your group's reaction to that?" Needless to say, it is great excitement. Our county has been suffering greatly.

We have a lot of stories to tell about this county and having the media here presents a definite opportunity for exposure. It goes without saying that the reason they are here is unfortunate.

We have told the press that we know the county has concerns about the costs, BUT that county officials are willing to step up to the plate as are we--and that we will work together as a team and bend over backward to help them in any way.

Having said all of this, we want the world to know we are a hospitable community. I urge everyone to keep prices down during the trial, so we are generous as we step up to the plate with the rest of the county . >From what I'm hearing so far, this is exactly what you are doing.

Thank you!

ne LeClair, CAE
President & CEO
San Mateo County Convention & Visitors Bureau


The problem is that the underlined paragraph (my emphasis) would seem to be belied by the direct quote from Ms. LeClair found in the original article. And, yes, you can lobby for a trial. It may be a dumb thing to do (or looking at that letter, desperate) and it should be entirely ineffective. Nevertheless, you can lobby.
20 January 2004           
Ken Lammers

"We nevertheless reiterate that violations of state procedural statutes are viewed by the courts with disfavor."

However, we will strongly encourage such actions by finding that even though the police acted illegally in arresting a Defendant in a city where they clearly had no jurisdiction it is not grounds for supressing evidence gained through the arrest because it is only illegal - not unconstitutional.

Commonwealth v. Coleman

A Chesterfield County case.
Ken Lammers

"Can I have somebody else present too, I mean just for my safety, like a lawyer, like y'all just said, or something?" isn't an invocation of your right to counsel.

Hilliard v. Commonwealth
Ken Lammers

A prosecution appeal denied on a hyper-technicality. The petition was mailed on the right day but not in the correct manner.

Commonwealth v. Green

Yipes! The decision is correct - now my whining about how courts always find in the prosecution's favor may have to be curtailed a little bit. Naw - what's the fun in that? Anyway, it's only one case out of how many?
Ken Lammers

Police, acting on an unreliable informant, assault a car with guns drawn. A judge in Chesterfield County (a very, very conservative county1) finds this unconstitutional. The prosecutor appeals this to the Virginia Court of Appeals.

Ignoring the basic rule of appellate law that the appellate court must interpret the facts in the favor of the party prevailing below (or at least not adopt facts which the trial judge had to reject to rule as he did) the appellate court finds that despite the fact that the informant was not proven reliable and despite the fact that police without probable cause rushed a car with guns drawn, pulled the occupants out of the car, put them down on the ground and cuffed them (clearly unconstitutional) the evidence which came from the subsequent search of the car shall not be excluded.

Huh? How, you ask, did they get there? Entirely adopting the prosecution's interpretation of the facts, they made findings of FACT which were not made by the trial judge (clearly outside their purview). Then they say "So what if the arrest is unconstitutional? According to the facts, as we determine them, we don't care that it's illegal/unconstitutional because the officers would have had reasonable articulable suspicion and conducted a constitutional search of the car anyway."

Remember the discussion of whether 4th Amendment rights still exist if you drive your car and/or how a court will twist the law in order make certain evidence which should be suppressed will be introduced to make sure the guilty Defendant goes to prison? Well, here's the Defense attorney's nightmare: Commonwealth v. Fraierson.

1 A standing joke as to suppressed evidence cases coming out of Chesterfield is that the fact a Chesterfield judge found the evidence unconstitutional should, of itself, be a dispositive argument in the appellate courts. It's always interesting reading appellate treatment of Chesterfield cases because the trial judges are good at what they do and when they exclude evidence it is not often in a gray zone; it's clearly over the line. And the trial judges are well versed in 4th Amendment decisions because the Street Drugs unit in Chesterfield is extremely proactive and will push as far as the courts will allow it (and maybe just a little bit further). So the appellate courts really have to stretch to come in with pro-prosecution decisions.
Ken Lammers

The feds have indicted a bunch of people in NY for having names that end in vowels. Or some reason like that . . .
Ken Lammers

Should the media be allowed to watch jury selection in a case with a lot of media attention? Or is it enough to only give the media a transcript of the hearing?
Ken Lammers

Strange Legal News:

(1) A lady fights a knife wielding robber off with a stapler: "I would have stapled him," Rankins said.

(2) If you yell at kids for playing their music too loud you could be the one convicted of disturbing the peace (at least in Montana).

(3) If somebody's selling a Harley for $10,000 less than market value it's a scam. Not a very well run scam but a scam nonetheless.

(4) If you steal a snake by stuffing it down your pants you might get bitten:
The tiger python snakes were not poisonous, and the 20-year-old man, whom police declined to identify, did not seek medical treatment for the bite to his groin area.

(5) If strippers are wearing flesh colored latex they are not nude:
Authorities say the officers, who had not seen the flesh-colored latex before, expressed doubt that the dancers were sufficiently covered. Court papers say police then were confronted by women "who held their breasts up to the officers and argued that they did have material covering their breasts."
(6) In Japan they are serious about their law enforcement: Police said they could not let the incidents slide, even though the men are believed to have stolen $0.0094 worth of electricity.

(7) Proof positive that Microsoft has absolutely no sense of humor: MikeRoweSoft.

(8) "A skinny rapist met his match in an angry, 275-pound prostitute." 'nuff said.
Ken Lammers

The Roanoke Time wants to send kids found with a gun directly to jail, do not pass Go, do not collect $200.
19 January 2004           
Ken Lammers

Whoever is in charge of John Edwards' spamming campaign - Please, puhleez, stop sending e-mail to my business account every hour. I don't live in Iowa and I'M NOT IN YOUR PARTY!!!
Ken Lammers

Naw. She couldn't have stolen the dog. I know that my dogs wander over to my neighbors' houses and hide in their basements. All the time.
Ken Lammers

A mayor steals a $1,000 bill from a citizen and prosecutors refuse to press charges.
The mayor of this St. Louis suburb fancied a rare $1,000 bill that was seized in a traffic stop, so the town wrote the driver a check and the politician kept the cash.

. . .

County police and prosecutors found that Pine Lawn officials broke no laws. But Don Schneider, a spokesman for St. Louis County Prosecutor Robert McCulloch, said "it's a bad idea for a city official or politician to have access to evidence."
No kidding.

How is not theft? That bill is not fungible so I don't care how many checks or hundred dollar bills you leave in its place it's not the same thing.

MRS sec. 570.030. 1. A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.

Seems to me that the mayor and deputies appropriated property of another with the purpose to deprive him thereof. It's pretty much black letter law.

found at Freespace
Ken Lammers

123 people at a dog fighting arena are arrested.
Ken Lammers

If you kill and eat a person you aren't mentally ill?
Ken Lammers

Who the heck would assault Stephen Hawking?
Ken Lammers

The Legal Reader takes note of shady behavior by a prosecutor.

Something similar to this happened to me about a month ago. I was representing client Smith with misdemeanor charges that were going to end up in a fine and suspended jail time. I had spent time talking to the prosecutor that day in order to work out the deal and was just sitting there waiting for the case to be called. After a hour or so the judge stepped from the bench and the clerk split the docket1, sending my client and about six others down to a different courtroom.

Before the judge comes out, I walk up to talk to the new prosecutor to make sure he knows the agreed upon deal. He looks down at the file and says he understands the deal and that he is going to have the deputies keep an eye on my client. ???? Curious, I ask why they would keep an eye on someone who is getting suspended time and who would be stupid to flee. At that point the new prosecutor tells me that they have other charges which they are going to serve on my client when he comes up to the bench.


After about 15 minutes of scrambling I, and the new prosecutor, figure out that my client is not the person who is supposed to be served the warrant. There was another person on the docket with the same last name and first initial whom the first prosecutor had confused with my client. Still, the original prosecutor negotiated a deal with me and let me sit there for over a hour knowing full well that he intended to have my client arrested as soon as our case was concluded. The implication being that I would go tell my client to run. Needless to say, these actions did not leave a favorable impression upon me.

1 This is done when one judge finishes his docket early and offers to help another judge who has a large docket.
18 January 2004           
Ken Lammers

(Yet Another) Week in the Life of a Criminal Defense Attorney:

Sunday: Up past midnight writing a petition for appeal which has to be mailed on Monday.

Monday: When I arrive at the local courthouse I walk in and a bunker has been built over the weekend at the front door. I kid you not. There is an island made of kevlar walls and bullet resistant glass right inside the front door. All that is missing is a 50 caliber mounted machine gun. Because we all know that al-Qaida is going to do a frontal attack on a courthouse in Chesterfield, Virginia. Any moment now. Real soon. Maybe. Perhaps. Well, it could happen. Riigghht.

Once I'm in the courthouse I go to one general district court where the prosecutor drops an unauthorized use felony against my first client. However, I don't get any warm and fuzzy feeling from it - the prosecutor is dropping the Virginia charge so my client can be extradited to Kentucky to face his third strike. Then I go upstairs to the circuit court and walk into the courtroom I'm supposed to be in. I don't see my client (who has no phone and hasn't contacted me in about 2 months). I go out and walk up and down the hall checking the other courtrooms to make sure my client hasn't gone to the wrong place. I then ask the deputy at the back of the courtroom if anyone has been looking for me (no) and go look at the posted docket at the end of the hall. My client's name isn't on the board. Confused, I look at my PDA calender and the folder- both say we have court today. So I go down to the clerk's office and have them pull the case up on the computer. It turns out that they had tried to serve a show cause summons on my client and couldn't find him so a week before they issued a capias and took him off the docket. Hmmm . . . I've never had a court do that before.

I have no court in the afternoon but late in the day I get a call from Keith Jones, a fellow attorney, and he asks me if I'm going to be in court Tuesday morning on the Maxwell case. I already know that I don't have any cases scheduled for Tuesday but I check my calender just to be on the safe side. I tell Keith I've never even heard of this guy and he's not on my calender. Keith tells me that he thought he'd been assigned to represent the guy but when he checked the case online my name was the one in the Supreme Court's computer as representing him. That said, I then go and check my pending files and my "dead" files and find nothing. I look everywhere to see if a file might have been displaced or something but I come up completely empty. Finally, I call Keith back and tell him that to be on the safe side I will come to court the following morning.

Tuesday: I show up at court in the morning and there is no Maxwell case on the posted docket. I go into both the criminal and traffic courts and ask the clerk if they have papers on the case and they both say "no." Keith Jones is nowhere in sight. I call Keith's office and they tell me that he has gone to juvenile court this morning. Finally, I make one last check. I ask the deputies if they have shipped Maxwell to court today; they tell me they have and they have him in lockup. Then I go back to the clerk's office and one of the clerks is kind enough to look on the computer and tell me Maxwell is supposed to be on the docket. Then I walk out into the hall and Keith shows up (a hour late because another attorney in his firm had dumped a juvenile case on him). We go back to see Maxwell and I don't even recognize the guy's face so we agree that Keith will represent him. I go back to the clerk's office and ask them to find the papers for the case. They do so with little muss-n-fuss (it's amazing how efficient they are) and send them into the courtroom. Keith later tells me that his name was on all the paperwork; somebody just typed the wrong name into the computer.

No court in the afternoon so I spend the time doing paperwork. In the middle of copying a ton of things my copier breaks down. So I have to switch from lawyer mode into repairman mode (ah, the joys of being a single practitioner). The little lights on the front indicate that the problem is with the ink cartridge so I pull the cartridge out and shake it a couple times. It fixes the cartridge but it also proves the hypothesis that you shouldn't shake a copier cartridge when you are wearing your favorite tie and a $60 shirt (at least not if you want to wear them again in public).

Wednesday: I go to court and find out that my client cannot go into the drug treatment program he had been accepted into because he is homeless and nobody can find a place for him to live (client wanted to go into the program). So we go in front of the court and my client is found not guilty and ordered released from jail. Then I go to a second courtroom where the judge has already called my case without me and dismissed it because the prosecution didn't have its witnesses. I spend my lunch time negotiating with a prosecutor about a Thursday case. He agrees to drop one felony marijuana distribution charge against my client (if he'll plead to the second felony marijuana distribution) but won't agree to a specific sentence because the guideline recommendation is too low.

Thursday: I go to general district court and negotiate deals in two cases but before I can get my clients in front of the court I have to go deal with the circuit court case. It should be really short because I've already worked out the deal with the prosecutor. Nope. The client shows up a little late, I talk with him, and we sit in court for about half a hour waiting to get called. The prosecutor calls the case and moves for nolle prosequi on one of the charges. Then my client pleads guilty. In Virginia, before a judge accepts a guilty plea on a felony he questions the Defendant to make sure he understands. So the judge starts the questioning. About 2/3 of the way through the questions he asks Client: "Do you understand that the sentencing guidelines are only recommendations and not binding upon me?" Client looks very confused so we stop and I turn to speak to him. I'm whispering intensely into his ear when he cuts me off and in a loud whisper says "What's binding mean?" After a couple more seconds of whispering on my part, we both turn back to the face the judge who - having heard the question - is chuckling. Anyway, we get finished and set a date for the sentencing hearing about three months out. I hurry back downstairs where my clients are among the last left in the district court. I get the first before the bench. His driving suspended is reduced to driving without a license and his marijuana charge is reduced to paraphernalia (no jail time and his license wasn't suspended). The second comes before the bench and his driving suspended charge is dropped by the prosecution but his felony eluding is certified to the grand jury.

Friday: It's Lee-Jackson day so the courts are closed. I do some work from the apartment in the morning and take my dogs out to play with them. I waiver on whether I should go to the office for my open office hours because it is an official holiday and nobody's shown up for the last three weeks. Then I remember that the last time I skipped a Friday (26 December 2003) people showed up and were very upset that I was not there. So, I go in and what do you know two clients actually come by the office. TWO. That's almost a miracle.
Ken Lammers

Some States built more prison space than they can possibly use while others have not built enough. Consequently, prisoners have become a commodity.
Ken Lammers

A man is freed after a false arson charge was made by a person who has been previously convicted of making a false report to an officer.
Ken Lammers

An Evil Law School.

Which of course begs the question - Are there beneficent law schools?

Well, maybe this one.
Ken Lammers

Just imagine what you have to do in order to be treated like this in court:

Ken Lammers

Once upon a time, when I was an undergrad pursuing my dual major by doing things like comparative translations of texts concerning Abraham in the Quran and the Hebrew Testament1, discussions like these at Punishment Theory were what I expected to participate in once I got to law school.

Instead, I got the "Socratic" method which dumbs down the classroom to an amazing degree. Arrggg. By the time law school had ended my intellect had dropped to the level which I now inflict upon those of you unfortunate enough to read my blawg.

BTW - if anybody from Punishment Theory drops by here, please, PLEASE change the font. The page is very difficult to read.

1 I write this less as an advertisement of self and more as advocacy of the education you can get at Centre.
Ken Lammers

Hunting communists in China. Isn't that a baited field?
Ken Lammers

The Curmudgeonly Clerk argues that consentual cannabalism isn't torture - at least not as international law defines it.
Ken Lammers

SW Virginia Law covers all last week's criminal decisions in the Virginia Supreme Court.
Ken Lammers

Somebody doesn't like grand juries:
Grand juries . . . are antiquated legal bodies that go contrary to all notions of American law. They operate on the basis of guilty until proven innocent. There is no guarantee of unreasonable search and seizure when it comes to grand juries, and they have an extremely low threshold of evidence required to obtain a subpoena.

. . .

[G]rand juries should be outlawed like they have in most modern countries. They are contrary to all other notions of justice in this country—no right to the fifth amendment, no standard of evidence for subpoenas, secrecy, investigation of people instead of crimes, based on guilty until proven innocent, etc. Grand juries are solely tools of repression. They rarely come up with any answers when investigating crimes, and almost always operate with the intention to disrupt people’s lives. They are a tool of the political police when they have nothing else to use.
Don't really agree with the guilty until proven innocent part (although the standard is extremely low) but I must say that proceeding on an information is a far better way to go. Investigative grand juries are pretty much a joke, easily moved in a particular direction by prosecutors and the typical grand jury will indict someone on just about any charge a prosecutor tells it to. Prosecutors and law enforcement should do investigations without this screen to hide behind (or worse, manipulate). And getting someone indicted after his preliminary hearing in general district court is pretty much preordained. I guess what I'm saying is that grand juries are a vestigial remnant of the past. They served a valid function at one time but in the modern era are at best meaningless, at worst . . .

Of course, the two clients I've had who were "not true billed" might disagree with me about that.
Ken Lammers

Indian tribes are banishing criminals. It's an interesting solution. Maybe we should try it. Virginia could take the multiple conviction heroin addict on his last day of prison to the airport, give him a one way ticket to Utah (gotta be far enough away that he can't get back), and then make sure he's on the plane when it takes off. 'Course, Utah might not be too happy about that.
Ken Lammers

It's probably a bad thing if the police think of you every time a burglary takes place.
17 January 2004           
Ken Lammers

Death & Politics:

(1) New York: The Legislature is holding hearings because the courts keep overturning death sentences.

(2) Two articles discussing the position of the Democratic potentials as to the death penalty. This one breaks it down by each candidate. This one has a more general discussion as to the reason.
Ken Lammers

Death - In the Courts:

(1) Seattle: The prosecution is being challenged because it did not pursue the death penalty with the Green River Killer (48 admitted murders) but is trying to get it in a case where one man was killed.
Choosing who should live or die has become an arbitrary decision in the prosecutor's office, argued one of Champion's attorneys, Jackie Walsh. In light of the Ridgway decision, she said, seeking the death penalty violates Champion's rights to due process, equal protection and cruel punishment clauses of the state and federal constitutions.

``The decision is an arbitrary one, and it's done in a capricious manner,'' Walsh said. A four-point set of standards adopted by the state Legislature nearly 30 years ago has failed to ensure the prosecutor makes fair decisions regarding the death penalty, she said.

Like Ridgway, she said, Champion cooperated with police by telling his family to speak truthfully to investigators. And unlike Ridgway, he has shown remorse.

(2) Texas: A man has chosen to represent himself in a federal murder case.
Ken Lammers

Death - Other Countries:

(1) Lebanon: For the first time since 1998 Lebanon has killed someone (actually three someones) for a crime.
"The restoration of capital punishment, after a suspension which has lasted almost six years, is proof of failure on the part of the state," Nasser Saghiyeh, a leader of Human Dignity, which groups four non-governmental organisations, told AFP.

"The president of the republic is placing the responsibility on the legal system, the prime minister on his colleague at the justice ministry, and both of them are saying it's the president who has the final say," Saghiyeh said.

"But in fact each one of them has the power to withhold approval."
(2) Manchester, England: A doctor killed 215 people before he was caught.

(3) Singapore: The government is not happy with an Amnesty International report. Here's a fact I didn't know:
Between 1994 and 1999, the rate of execution in Singapore was 13.57 per million population — far higher than second-placed Saudi Arabia (4.65), Belarus (3.20) or China (2.01).
(4) Samoa: The death penalty looks like it's on its way out.

(5) Nigeria: A call for the end of the death penalty because it is being abused.
Ken Lammers

Death - Alabama:

This #sshole not only got himself convicted of murder, now he's getting letters printed about it on the internet.
Ken Lammers

Death - Texas:

A Saudi Muslim killed a Moroccon Jew in Houston.

And then came the dreaded visit from Homeland Security (sans Defense attorney):
Homeland Security detective Bill Moore, who made the jailhouse visit to Alayed, told Reuters that Parnham was not contacted because the agency talked to his client about "jail security" issues that had nothing to do with the case.

"We routinely go over and interview inmates in the jail about matters not related to the case," he said. And they routinely do not tell the inmates' lawyers, he said.
Okay, that's just scary. And what does Homeland Security care about "jail security?" One might suspect that the Defendant could have been questioned about matters involving something like,oh, say, homeland security rather than whether the Defendant thinks that the jail does head count often enough or if the walls could be Shawshanked. Of course, why would you lie about something like that? As long as they don't talk to the prisoner about the charge in which he is represented law enforcement can come to the jail and talk to him. It may be a little slimy but it's perfectly constitutional.
Ken Lammers

Death - Ohio:

The State kills a man who did not go easily:
Four guards were needed to lift Williams from his knees and pry his hand off the edge of a table before carrying him into the death chamber. As he was strapped to the execution table he cried, "I'm not guilty. God, help me."

At least nine guards restrained him as they prepared his arms and inserted needles. One guard standing at his head alternately restrained him and patted his right shoulder to comfort him.

Williams repeatedly shook his head and tried to lift himself off the preparation bed. He yelled several times, then rested his head and spoke, appearing to whisper or chant quietly.

Williams kept pleading even as the warden pulled the microphone away after his final official statement: "God, please help me. God, please hear my cry." He was pronounced dead at 10:15 a.m.
Ken Lammers

Death - Connecticut:

Is it murder if the person refuses medical help which could have saved her?
Ken Lammers


Howard Bashman spoke at Harvard and here's the video. It's worth a listen (I say listen because the picture froze on my computer about ten minutes in).
Ken Lammers

One person fakes cancer it's interesting. Two, it gets a little disturbing.
Ken Lammers

A deputy is acting in official capacity when he kicks a prisoner in the eye causing partial blindness (as a jury found). Therefore, the county has sovereign immunity.
Ken Lammers

16 January 2004           
Ken Lammers

You know something strange is going on when one of the jurors shows up with a bodyguard.
Ken Lammers

In a shocking development inmates in a riot have denied trying to harm guards.
Ken Lammers

Did you get your bid in on West Virginia?
Ken Lammers

Seems that there is some confusion in the U.K. about whether cannibis will be legal or not.
Ken Lammers

My first reaction to this was "Oh, boy! I can bash prosecutors?!?" My second was "Oh, c'mon! You gotta be kidding."

Does this guy actually believe that the poor, put upon prosecutors need a break in dealing with us evil, malicious defense attorneys? I mean, I know when I walk into a courtroom all the power is in my hands and everybody is biased toward believing me and my client instead of the policeman and the prosecutor. But that's just me; I hear that other Defense attorneys maybe don't quite enjoy the same advantages.


Look, the great majority of you prosecutors are decent folks but you really cannot expect me to feel sympathy on the one or two cases out of thousands upon thousands where the worm is turned. Take solace, as soon as you finish the hard case things will return to normal and all the advantages will return to you.
Ken Lammers

If you are going to streak make sure your getaway car doesn't get stolen.
Ken Lammers

Milbarge wieghs in on Lidster and more generally on courts and the 4th Amendment.
Ken Lammers

You gotts respect someone who knows probate law for the Shire.
Ken Lammers

Remind me (if I ever decide to break the law) to move to Greenland.
Ken Lammers

Bryan Gates wins a trial, but he's not too happy about it.

Ken Lammers

I don't care how upset you are about the verdict, you cannot corner a juror because you couldn't get a conviction.
Ken Lammers

Rule #1 of living life as a crook:

Don't rob somebody if he's on the phone with the police commissioner.
Ken Lammers

NYNY is going to flood areas where the crime rate is too high.
Ken Lammers

No wonder other States send prisoners to Virginia to be warehoused. It costs $100,000 a year to keep prisoners in jail in NYNY. I'd bet you could ship those folks to BFE Virginia (where the primary income producer is the prison) and keep them there for a lot less.
15 January 2004           
Ken Lammers

In Virginia, if you're found in contempt you better make sure you shout the reasons for your objection to the contempt as you are being dragged off to jail or you won't have preserved your error.

Actually, this case isn't quite that bad. A lawyer files a motion alleging a lack of jurisdiction the day before a hearing. Then, on the day of the hearing he tries to say that the opposing party has waived any objection to his motion because it has not filed an answer. The court sort of looks at askance and tells him that the motion will be taken up after the hearing (BTW, for those who don't know, that means you lose). He persists in trying to get the court to rule on whether or not it has jurisdiction and eventually:
THE COURT: Have a seat.
[APPELLANT]: It's not proper to go forward on anything, Your Honor. I'm noting my objection to that case.
THE COURT: Well, what I'm going to -- listen, let's get something straight. If I want to hear from you, I will ask you to talk. I don't want to hear from you right now. I want you to have a seat, and I want to hear from [opposing counsel]. Sir, if you open your mouth again I'm going to hold you in contempt of court. Do you understand that?
[APPELLANT]: Your Honor --
THE COURT: That's $100.
[APPELLANT]: Your Honor --
THE COURT: That's $300.
[APPELLANT]: Your Honor --
THE COURT: That's $500.
[APPELLANT]: I'm obligated under the --
THE COURT: That's $500. I will do an order later. . . .
[APPELLANT]: Your Honor, I'm obligated under the Constitution of the United States --
THE COURT: Sir, I'm going to have you removed from the courtroom if you don't be quiet.
[APPELLANT]: Your Honor, if I can just --
THE COURT: No, you may not. Be quiet. Sit down. Are you
amused by something?
[APPELLANT]: Well, Your Honor, I believe that it -- I actually find it irregular in this case where someone is trying to put an objection on the record for the Court to tell him he can't do that.
THE COURT: You already put the objection on the record, and all you're doing now is talking when I told you not to.
[APPELLANT]: Your Honor, I've asked you to respond to the record, which I believe -- respond to the objection, which I believe --
THE COURT: You're up to $700. If you want to go for more, that's fine. You can deal with it with the Appellate Court.
At this point even the dimmest of bulbs has got to know that he's not going to get to talk anymore. Heck, if there is that much ire directed at him he has to wonder if they might even dust off the old plenary contempt and see if they can send him to jail for longer than the 10 days allowed by statute. There is no way he's going to be allowed to state the reasons for his objection to the contempt. Still, the appellate court refuses to address this on the merits because he has not preserved his reason for the objection.

C'mon, just rule on the merits. It's not like this conviction's going to be overturned. What's the worst that can happen? You send it back to the court reversed as to sentence with an instruction to reduce the fines to the maximum allowed by law. I don't think even a lawyer could claim that as a moral victory. Although, I do know some guys who wear their contempt citations as badges won on the battlefield. Of course, these are the same guys who will tell you that you aren't really a defense attorney until a judge has sent you to jail for contempt (in which case I will be one of those individuals who will strive never to become a "real" defense attorney - I'll just try to become the best damn lawyer in the courtroom).
Ken Lammers

Okay, here's a judge who really, really doesn't trust the media.

The Martha judge is not allowing media to view voir dire
because he thinks member will name names and reveal what people said.
Ken Lammers

If you're in prison the constitution says you can get your comicbooks but you can't get porn or D&D stuff.
Ken Lammers

Not sure what class it is that Mike Adams teaches but it sounds pretty interesting and it riles up others on the teaching staff.
Ken Lammers


I think this story indicates there was a slow day in the newsroom.
Ken Lammers

Further reactions to Lidster:

The case is here. Here is my reaction.

TalkLeft --- Vice Squad --- Crescat Sententia

For what it's worth - I agree that the reason the 4th Amendment has been shattered is that almost every time a case comes before the court it involves a Defendant who is undoubtedly guilty but who cannot be convicted if his constitutional rights are upheld. We all know the old truism that "hard cases make bad law." It takes a confident court, dedicated to long term protection of liberties, to stare down its nose and issue a ruling which will free someone whom everyone knows has committed a crime. Most of the time the judges and justices blink. They will stretch, contort, parse, or expand the law until it is bent so badly out of shape that it bears no resemblance to what it is supposed to mean.

On its face, the 4th Amendment reads as a rule followed immediately by instructions as to how the rule should be applied. I have a right "to be secure in [my] person, house, papers, and effects, against unreasonable searches and seizures" which can only be superceded by a warrant issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It seems pretty clear that you need a warrant to search or seize me and it is supposed to be fairly hard to get that warrant. Of course, at the very least that vitiates everything from Terry onward. It's a very high standard and one which has absolutely no chance of ever being enforced in court.

Why has the federal constitution been the subject of such twists? Because it has been bent to a purpose for which it was never intended. The States are the ones who are supposed to be making the rules as to how criminals are dealt with through their laws and constitutions. The federal constitution is meant to be particularly restrictive; it is meant to check the power of the central government (which was never meant to go into law enforcement). However, the application of these standards to the States and the growth of federal law enforcement have both led to pragmatic departures. Each departure is well reasoned and justified; after all it only goes a little further, it's a matter of common sense, or it's just a minor exception (which quickly becomes the rule). Now we have police crashing down doors - without any reason - if you don't answer quickly enough, we have people getting arrested for "trespassing" on public streets, we have police with the ability to stop cars wherever and whenever they want to - for extremely minor reasons - in order to shake down the driver, and we have police setting up roadblocks so that they can arrest citizens whom the officers don't even have a previous reasonable articulable reason to question. Each decision standing alone might be justifiable somehow but when you stop taking a myopic tree by tree view the forest starts to look pretty dark and foreboding.
Ken Lammers


I must say that this strikes me more as culture shock than an actual analysis of the reality. It reads like he got there and was shocked that he got the tourist treatment during his week in Egypt and (I assume) short time in Mecca on a haj. What can you expect?

Did he learn to shop at the stores in the neighborhoods rather than the suq (where they charge Arabs 5 times more and jack the price for gullible Americans even higher) or even to have the mandatory argument over prices (something Americans seem genetically predisposed not to do)? Did he get to know any of the Egyptians well? Yes, they are living poor but they have an amazing "we're all in this together" sort of attitude. Many are amazingly well educated. They have a pride in their history and a dedication to their country.

Mind you, I would not want to live in Egypt permanently myself. It is a semi-democratic, semi-open country. While it is the only country in the Middle East where I saw an opposition party member making a televised speech against some presidential policy, I have no delusions that there is any chance that the President will ever be "voted" out of office. Likewise, while the London Arabic papers were available the vast majority of citizens probably only saw the local papers which were subject to heavy government influence (mind you, the large number of Egyptian papers/magazines is a testimony to the literacy rate).

And there is an ongoing conflict with various radical Muslim groups posing a continuous threat to the very existence of a modern Egypt.

However, I am enough of a realist to realize that the primary reason I, and other Americans, couldn't take living there is the lack of wealth. While the people and government seem capable of providing necessities and some simple luxuries it is a far more austere world than ours. There are no opulent, overstocked malls. Few families, much less individuals, can afford a car. No 200 channel cable or 36" TV. No grocery stores with so much food that spoilage is a problem. Yes, I know this is petty but in the real world these are things people miss the most - Americans absolutely go into culture shock when they enter a society where such things are not available.

It took me at least 3 months to start becoming significantly acclimated to a culture which is so radically different and I spoke the language.

Personally, I always thought that Egypt was the best hope for the Middle East. I guess I always held out hope it could go through a transformation much as Mexico has done allowing other political parties to actually rise to power. In my opinion, it was the horse to back in the region. Realpolitik has rendered that opinion moot now that we have Kuwait and Iraq as client states of the American Empire. I don't disagree with the steps that we have taken in Iraq; I merely view the option of making efforts to bring ourselves into a closer relationship with an Egypt as an alternate path not taken.
14 January 2004           
Ken Lammers

Wow, the rule of thumb is still extant in some circles.
Ken Lammers

The continuing weirdness of DUI's:

In New Hampshire a person is charged with DUI for riding his bike. And here's a discussion over at Curmudgeonly Clerk about a DUI for being in a mechanized wheel chair.
Ken Lammers

Scamming $78,000 from 9-11 charities.

I particularly like this:
The judge told Weissman he would get help in jail. Reminding Weissman, "You are a heroin addict on methadone," Bradley said correction officials had assured him they have several programs that can help Weissman.
Well, I don't know about New York but I can vouch for the fact that Virginia has a program that works extremely well. It's called Cold Turkey and boy is it fun meeting with a client who has been put in jail within the last two weeks and is experiencing the joys of the program.
Ken Lammers

What exactly is meant by "concealed his ties to terrorist causes when applying for citizenship to the United States a decade ago?"

I assume it means some sort of active participation took place - not that Uncle abu Milak was someone the Israelis suspected he was in a PLO cell.
Ken Lammers

Ladies and Gentlemen, I give you the Professor Roger Groot bobblehead doll. Apparently Washington and Lee Law is selling these to raise funds. Scary.

For those of you who don't know, Professor Groot splits his time between running the Virginia Capital Case Clearinghouse and terrifying 1L's in criminal law and procedure classes. I ain't never seen so many kids scared of one man in my life as the 1L's in his first semester, first year, 8 a.m. Criminal Law class were of this man (well, with the possible exception of the Drill Sergeant in basic training). On the other hand, once he teaches you you stay teached. Heck, I can still recite the common law elements of burglary by heart and he wasn't even my criminal law professor. My roommate (who was in his class) repeated them (and the elements of many a crime) so many times that eventually they even stuck with me.
Ken Lammers

The Supreme Court has decided that police can seize you without a warrant and without suspicion that you have any involvement or knowledge in anything criminal in order to perform a investigation of something that happened a week ago.

There's always something that happened a week ago
: a bank robbery, a murder, a stolen car, a mugging, somebody jaywalked, etc. And gee, wouldn't the police like to get information about the [fill in the convenient excuse].

I really can't say I'm shocked. I wish I could, but I no longer believe that you have rights if you choose to drive your car. The courts allow pretext stops on the most transparent of technicalities. The courts are the only place where anyone thinks that a citizen has a choice when an officer "asks" him to exit the vehicle. The courts tell us that if an officer hands you your license back and immediately starts to question you - you can just drive off and leave him standing on the side of the road. And since Reittinger, the courts I practice in have been of the belief that there have to be two law enforcement officers or my client could not possibly have been intimidated by a single officer with a badge, gun, uniform, and flashing neon lights (at 3 a.m. on a dark, lonely stretch of road).1

The courts allow officers to set up road blocks to shake down citizens about whom the officers have no information (not even reasonable articulable suspicion). First these were allowed under the pretext that they involved traffic safety. Now they are allowed because something happened a week ago.

Not that this will often affect me or thee. I daresay that most of the people reading this don't live in low rent trailer parks or motels in the bad part of town. So police will not be setting up roadblocks outside the one road leading to our subdivisions or apartment complexes. And since the great majority of the effect will fall on lower economic classes it must be valid, right? After all:
"The Law, in its majestic equality, forbids the rich, as well as the poor, to sleep under the bridges, to beg in the streets, and to steal bread."
At least it will bring more clients to my door. Good to know the Justices are looking out for me.

1 Mind you, the officer's ability to intimidate someone both as an individual and a representative of a powerful organization is one of his most necessary tools in keeping himself alive at 3 a.m. on that lonely stretch of road when he pulls over a group of young males with a couple sawed off shotguns (actual case). I want the officer to have this at his disposal. I just get plain tired of courts ignoring the fact that it exists when the officer uses it in order to coerce car occupants into allowing a shakedown search without any indication of wrongdoing.
13 January 2004           
Ken Lammers

Sexual blackmail by a Trooper leads to a big civil case. I predict it settles.
Ken Lammers

Spying is bad. Spying for the former Iraqi regime is worse. Going to prison after the Iraqi regime has been toppled has got to be the worst.
Ken Lammers

Concerned that your ranking politico is being tried for bribery? Have the parliment pass a law giving him immunity.

Still, a pesky court might rule that doing such a thing isn't constitutional.
Ken Lammers

You mean, when my client is sentenced to 5 years in prison he's not going to come back a well educated, reformed man, better for the experience? I'da never guessed.
Ken Lammers

Another example of a federal judge turned into a clerk for the prosecutor by the guidelines.
Ken Lammers

I know everyone's probably seen this already but when one of the signs of the apocalypse occurs I just have to note it: Rush is being supported by the ACLU.
Ken Lammers

Death - In the Courts:

California - Is it murder if you don't know that the woman is pregnant when you cause the unborn's death?

Raleigh - A federal judge stopped a North Carolina execution because the method is inhumane. He was later overruled.

Illinois - A judge has quashed subpoenas (to every prosecutor in the State) for information through which Defense attorneys intended to prove arbitrariness.
Ken Lammers

California prosecutors charge two 14 year olds with murder.
Ken Lammers

The Chief of Police in Charleston makes a crude statement:
"I refuse to take responsibility every time one black son of b**** kills another."
Ken Lammers

Death - Other Countries:

Vietnam - Amnesty International is stunned, nay shocked, that "the Vietnamese government, in a decision signed by the Prime Minister on 5 January, has made the reporting and dissemination of statistics on the use of the death penalty a state secret."

Kyrgyzstan - The President has extended a moratorium for a year.

Amsterdam - A fight over how to proceed in an investigation of a plot to kill the top prosecutor.

Belfast - A trend toward tougher sentences.

Turkey - The death penalty is abolished by treaty.

India - You can get released from a life sentence if you get TB.

Jerusalem - A woman is found not guilty of having threatened to kill her husband.

Nairobi - Coaching a suspect as to what he should say once the camera was truned on.
12 January 2004           
Ken Lammers

Carry his photo- A judge orders a Defendant to carry a picture of the person she killed.
Ken Lammers

Death - Exoneration:

Florida - A man is exlcuded by DNA after spending a year in jail.

Rhode Island - If you are a police officer and you are convicted of murder you can get reinstated with backpay if you are shown to be innocent by another man's confession.
Ken Lammers

Death Penalty Politics:

Illinois - How the State has changed since the Governor commuted all the death sentences.

New Jersey - Governor James E. McGreevey is refusing to have the application of the death penalty studied.
Ken Lammers

Death - NGRI:

The Defendant was not guilty because he "believed he was under attack when a SWAT team entered his darkened home in April 2002." What's insane about that? If a bunch of guys with guns enter my house at night I might come to the conclusion I was under attack as well.
Ken Lammers

Death by State:

In the last week or so North Carolina has killed man, Texas has killed a man and Arkansas killed a man with mental problems.
Ken Lammers

There's an award for having the best jury website?
Ken Lammers

In honor of making it to the 1 year point, I have gone back to the first blog page I designed myself. My page started out with a premade blogger format almost exactly like this old Freespace but eventually I set out on my own path. Personally, I liked this format but after I got a lot of complaints I moved on to the more modern one.

I will probably leave this format up for a week or so but never fear, I will go back to the one I had after the nostalgia wears off.

BTW - I have no idea how many of the links work. I didn't have time to replace my old links with my new ones.


O.K. the modern version of CrimLaw is back.
11 January 2004           
Ken Lammers

Signs That You Are Desperate in a Trial:

I'm putting the finishing touches on a petition which has to go to the Virginia Court of Appeals in tomorrow's mail. A stubborn client decided that he would rather have his trial than accept a generous offer from the Commonwealth. There's a couple of good stories about that but privilege bars me from telling them. Mind you, I love a good trial and this one was pretty hard fought from beginning to end but there was really no doubt as to how it would conclude.

At the motion to strike the prosecution's evidence (after the prosecution completes its case but before I begin my client's) I am scrambling for something, anything to argue. You know you are desperate when you start your argument like this:

MR LAMMERS: Your Honor, I'll have several grounds for motion to strike, first of which, and I don't have this case. I apologize. But the Commonwealth hasn't proven that the structure was permanently affixed to the ground. And I will cite you the case, Your Honor. It is Buie, B-u-i-e vs. the Commonwealth. It's --

THE COURT: Was Buie dealing with a trailer, Mr. Lammers?


THE COURT: Was Buie dealing with a trailer?

MR. LAMMERS: I don't know, Your Honor. It says here, and I quote, "In order for a structure to be the subject of a burglary, it must be permanently affixed to the ground at the time of the unlawful entry."

PROSECUTOR: Your Honor, I believe that Buie was referring to a trailer.

MR. LAMMERS: If it's a trailer, Your Honor, and it's not been proven that this isn't a trailer home, Your Honor. The officer said himself that he, outside in front, he found shells. And that would indicate that it's not a 16-story apartment complex where they live on the top floor, unless they shot into the roof, at which time I think we would probably be seeing ballistic experts right now . . .

- - -

For some reason the judge didn't buy my very persuasive argument. I really hadn't planned to argue that but as I glanced through the annotated code at the end of the prosecutor's case I saw it and realized that no one had said they were even in a building. Still, I'm lucky there were two substantial errors later in the case so I din't have to petition the Virginia Court of Appeals with something that silly.
Ken Lammers

Hey, I know this guy!

Steve works for pretrial services in Chesterfield County and was formerly a police officer in Petersburg (I guess he left because he got tired of ducking bullets).

Read the first two police books which show great promise and were best sellers at local bookstores. I have a copy of the first few chapters of the 3d but have yet to find time to read them.

Someday the 450 page thriller will hit the best seller list and I'll be able to say I knew him when . . .
Ken Lammers

The logic of those who would imprison Adrian Lamo.

See also here and here and here and here and here.

Over time I've come to the view that perhaps this is less about the NYTimes and perhaps more about a FBI agent without a sense of perspective (or trying to make her bones) pushing hard (even beyond where she was allowed to go):
[A]n article in SecurityFocus attracted the attention of FBI Agent Christine Howard, who began an investigation of the young hacker.
. . .
U.S. prosecutors tried to subpoena an MSNBC reporter's notes without the required approval in June 2002.
. . .
Later that month, the FBI demanded that more than a dozen reporters, including one from Wired News, be ready to hand over all documents related to Lamo. The request was withdrawn weeks later by an apologetic FBI Deputy General Counsel Patrick Kelley.
I notice the amount of "theft" claimed has dropped precipitously. And I still want to see proof that the NYTimes paid anything more than an agreed upon total subscription rate.
Ken Lammers

Is it worth passing up the nightly washing of dishes in order to serve on a jury?
10 January 2004           
Ken Lammers

Well, if the judge issues a gag order you can always get pejorative info in through the filing of motions (which are public documents). At least that's the Kobe Defense team thinks is happening.
Ken Lammers

Medical Care at Jails:
A federal jury in Fort Lauderdale awarded $500,000 to a woman whose life-threatening tubal pregnancy was misdiagnosed as constipation and venereal disease while she was serving a 60-day sentence in the Broward County Jail.

. . .

"I was helpless," she recalled. "A lot of days I couldn't get up. I couldn't roll over. I couldn't move my legs. I thought I'd die." But, according to court records, she was never seen by a doctor or given a pregnancy test. Jail nurses denied her request to go to the hospital. Instead, she was given Milk of Magnesia and a mild over-the-counter pain reliever. She was told to take deep breaths.
How in the world did she get Milk of Magnesia? The main jail I deal with won't give my clients any meds other than ibuprofen. Got a headache? Ibuprofen. Got stomache problems? Ibuprofen. Possible heart attack? Ibuprofen. Need meds to keep your psychosis from turning you into a raving maniac? Ibuprofen.

I understand part of the reluctance to give more serious drugs is because so many prisoners are malingering in order to get drugs. However, after you see this over and over again you start to suspect a lack of care and an overriding concern for the bottom line.
Ken Lammers

In Terrengganu, Malaysia the law requires women to adhere to a dress code because:
provocative dressing by women has 'a very close link' to murder, rape, molest and sexual abuse.

PAS Youth chief Salahuddin Ayub also blamed Jews for pioneering a 'provocative, seductive and branded dressing culture' which pandered to the ego of the dresser.
Wow. Jews are trying to undermine morality in Malaysia? Can anybody explain to me what is so important to Judaism in Malaysia to draw such interest?
Ken Lammers

A Week in the Life of a Criminal Defense Attorney:

Monday: I go off to a rural court so that two of my clients can be sentenced. The first comes out of lock-up in his prison garb and before we can even start the judge asks me how much time my client has been sentenced to in the three other jurisdictions where he had statutory burglary charges and a show cause. "37 years 2 months, Your Honor." The sentencing guidelines called for my client to get somewhere between 3 years+ and eight with a "mid-point" (the usual sentence) of 5 years. The Commonwealth argues that no matter what his other sentences are the Defendant must pay for his burglary in this county as well. I stand up and point out the sad story of my client's terrible formative years and his almost inevitable descent into drug abuse and crime. I point out that he is going to serve at least 32 years (there is no parole in Virginia - convicts serve at least 85%). The judge looks down at my client and sentences him to 8 years but suspends the entire sentence.

The second client was on bond. When he first came to my office he was wearing big skull rings and a jacket which had something like "White Power" on it, his hair was shaved very low, tattoos were visible all over his arms and whatever part of his body was visible, and he was wearing very thick rimmed black plastic "Clark Kent" glasses. He stood charged with a number of felonies. By the time we got to sentencing, he showed up in a very nice blue suit, had a nice short haircut, no tattoos were visible, the jewelry was gone but he still had the Clark Kents; his charges had all boiled down to a single possession of a sawed off shotgun and the recommendation (with which the Commonwealth agreed) was probation. The hearing was going swimmingly until right at the end the judge looks over at my client and asks, "The presentence report says almost the entire upper half of your body is covered with tattoos. Do you look today like you did when you were arrested?" Oh, shit. Client looks panicked and stammers something like "S s sir?" Judge: "Well, are you wearing the same sort of clothes? Is your hair the same? Did you have those glasses?" Client regains his footing a little and answers "Well, I wore the suit out of respect for the court; my hair's a little longer; and the glasses are the same." That seemed to satisfy the judge; he asked a few more questions and then sentenced my client to six months and suspended the entire sentence. I am convinced that the reason he started asking questions was because of the Clark Kents. They looked like the $5 reading glasses you can buy at WalMart - so fake looking I'm sure he thought my client was wearing them for effect.

Tuesday: I go to court and argue a the constitutionality of a stop and search. The officer testifies she pulled Client over for weaving on suspicion of DUI. Gets Client and Passenger out of truck. No odor of alcohol, no slurred speech, no stumbling or any other indicators. Officer doesn't administer a single sobriety test. While she is "checking my client's license and registration" the officer pulls her drug sniffing dog out of her car and runs it past Client, Passenger and the truck. Dog does not indicate on the truck, dog hovers in Client's genital area (which officer interprets as reacting to menstruation and non-presence of drugs), and dog indicates Passenger has drugs. Passenger is searched but has no drugs on him and tells officer that he was around people smoking marijuana earlier in the day. Then the officer searches the truck and finds drugs. Then officer approaches Client and tells her that a search is going to take place and if Client has any drugs to fess up. Client pulls drugs from her pocket and hands them to officer.

I argue a number of violations. The strongest constitutional arguments are that the truck search was unconstitutional because there was no PC which would allow a Belton search and that once the officer forwent the investigation of the DUI that there was an unconstitutional seizure for holding beyond the time necessary to investigate the pretext offense.

The Commonwealth really has no answer to my argument. His strongest statement was that Passenger said he had been around marijuana earlier and maybe it was in the truck. I stand up in rebuttal and point out that "maybe" isn't the constitutional standard and that the dog had already given the officers a positive indicator of non-presence

The judge fusses back and forth with me for a minute about whether my client has standing to object to the search since nobody had shown her to be the owner of the truck - she was just the driver. Still, it is looking real good and I'm starting to think that I am about to win a suppression motion in one of the most conservative counties in one of the most conservative States in the country. Then, suddenly, ambiguity is snatched from the jaws of victory. The judge looks down and tells everybody how serious this is and how he wants us to brief it. So now I have four weeks to brief it, the Commonwealth has two weeks to answer, and I will have a week to make a reply if I so wish. Aaarrgggg!!! So close . . .

Wednesday: I go to court on a day where I am scheduled to have a jury trial. Before trial the Commonwealth offers to drop the felony possession of cocaine to misdemeanor possession of paraphernalia with no active time and my client decides to take the deal. I leave the circuit court area and walk down to the general district court. As I am walking down the hall a kid hails me and reminds me that he had talked to me a couple months earlier in the same hallway but he'd never been able to get the money together to hire an attorney and the court wouldn't appoint one and the court wouldn't give him a continuance. He swears he will pay me at 2 p.m. on Friday (payday) if I will represent him today. I look at his warrants/summons and realize that if he doesn't have an attorney he's going to end up getting hit a lot harder than needs be. I also figure I'm due to donate some pro bono publico time (I long ago gave up believing that my clients would gladly pay me Tuesday for a hamburger today). I go in and get the Commonwealth to drop two charges and the guy gets out of court only convicted of a first time DUI. And, no, he didn't show up on Friday.

Thursday: I go to court and try to get a client in a drug treatment / mental health program but he's homeless so we have to put off the entry while the program tries to find someplace for him to live.

As I am walking out of the courthouse two women approach me and ask if I know Attorney Smith. I tell them I do but I've not seen him. They ask if I knew how to get in contact with him because they have been unable. I tell them he is a Reverend and maybe they should call information and ask for his phone number. One of the girls immediately turns to the other and says, "Oh, great, you're not only going to jail, you're going to Hell too."

Friday: I go to court for a client who is charged with driving on a suspended license. We get a continuance so that he can try to get his license back and come to court with it (hopefully getting the charge reduced).

As I am walking out a Commonwealth Attorney asks me to come help with mock trials for the police cadets. So I spend the rest of the morning cross examining the officers to be or playing judge. One time I even played persecutor (it felt really weird arguing that the officer had properly followed Miranda). Lots of fun and it gives you a chance to develop good relations with the incoming officers.

Then I come back to my office and work on a petition for appeal to the Virginia Court of Appeals. There is at no stage a mandatory appeal in Virginia - all appeals must be by petition and acceptance. I am really sinking my teeth into one substantial error the judge made. I find a number of cases and secondary sources which are directly on point and my argument is shaping up very nicely. Then I realize that the error only effects one charge and it's the only charge (out of 8) of which my client was found not guilty. Back to the drawing board . . . Now I get to spend all day Saturday getting this petition together based on my two remaining arguments.

Oh, yeah, BTW, as I do every Friday I had open office hours from 2 p.m. until 5 p.m. and as usually occurs not a single one of my clients came to the office. Still, it gives me time to get things like this petition done (as long as I don't get sidetracked on wild goose chases).
Ken Lammers

Well, I've shown you the inside of my office here1, so I thought this time I'd show you what is on the door to my office. Yes I realize that it is a tad gauche but it's a necessity. Once upon a time I had the typical faux brass plate on the door which said "Lammers Law Office." It wasn't spectacular looking but it was more appropriate. The problem was, my clients would come to the office and stand outside the door without coming in. The first couple times I thought something along the lines of "geez, what an idjut." But it kept happening over and over and over again. So finally I cracked, went out and had a sign made with nice big letters which would tell people specifically what to do (or that I was not there). You know what, it works. I haven't found a single confused client standing around in the hall since the day it was afixed to my door and I'll happily put up with a little tackiness if serves a practical purpose.

1 For those of you using Explorer only two of the pictures appear. I have no idea why this happens; if you want to see all the pictures switch to Opera, Netscape, or Mozilla (personally, I suggest Opera - once you get used to a few differences it is by far the best browser).
09 January 2004           
Ken Lammers

Sandra Day O'Connor is going to speak at Centre College's commencement.

I wonder if I can go back and talk my alma mater into giving me a ticket.

Centre dear, we offer thee, Love profound and praises free.
Where thy walls of ivy rise, God unseals our blinded eyes.
Where thy tree lined pathways lure, Friendships spring eternal sure.

For thy gifts we offer thee, Centre dear our loyalty.

We, thy sons and daughters free, Through the truth revealed by thee,
Strong in resolution rise, To the future's enterprise.
Duty is our beacon pure. Honor is our standard sure.

For thy gifts we offer thee, Centre dear our loyalty.

Sorry - sudden bout of nostalgia.
Ken Lammers

What this article fails to tell you is that Lamo would break into machines and then tell the companies the flaws in their security so they could fix them. How do think he got caught? The NYTimes would rather punish than fix.

The lesson here is that if you do this sort of thing don't try to do it in a "white hat" manner. Don't tell the company - just leave the security flaws in place so that everybody can exploit them.
Ken Lammers

If you claim you lost the winning lottery ticket you'd better hope the person who actually bought the ticket doesn't show up.
Ken Lammers

If you've been around the blawgosphere you've seen all these sites but do your remember when they looked like this?

Ken Lammers

No charges for the 11 year old girl who was selling heroin at her mother's behest.
Ken Lammers

A capital defense office is being opened in Christiansburg, Virginia.
Competent, vigorous legal representation is especially critical in Virginia, which ranks second to Texas in the number of executions since 1982. In the past few years, Virginia has tried between 85 and 100 capital cases a year.

Yet appallingly, a study by the American Civil Liberties Union a few years ago found that court-appointed attorneys in Virginia capital cases had worse-than-average disciplinary records with the state bar association.
Of course they do. They're criminal defense attorneys. The only people who get more complaints are domestic attorneys1. A fairly typical complaint lodged with Bar alleges:
He didn't take all of my [twice daily, collect] phone calls from the jail, didn't explain to me that I'd actually have to go to prison if convicted of distributing drugs, wouldn't call my thrice convicted felon cousin to testify that he heard somebody at work say that somebody else was the dealer on the corner who ran away from the police (cousin was never able to get more specific than about either person), and didn't call another witness I wanted at trial just because he claimed he couldn't find him (just because I had no address or phone number and only know the guy as K-Bat is no excuse - if he had gotten me a lower bond I could have gotten out and found the guy myself).
No matter how clearly and how often the Bar explains in its brochures, on its website, and on its complaint form that this is not an appeal and will not change the sentence Defendants and their families continue to believe it is and it will. A buddy of mine got the dreaded letter from the Bar recently and the complaint alleged everything under the sun but said the defendant's family would be happy to drop the complaint if the Defendant's sentence was reduced. I suspect my friend going to make it through unscathed. However, if enough complaints of this nature are filed something is going to stick eventually. This is true because (1) Defense attorneys are human and do make errors, and (2) if you get a complaint about a case from 8 months ago - from a client whom you barely remember - how do you answer it if you don't have notes about the particular allegation? For instance - on the day of trial Cousin shows up with the hearsay above. You listen to him and tell client he cannot testify (which client never understands). Because you are minutes away from a jury trial you forget to note it on your file and proceed to trial. Months later you get the complaint that you refused to call THE witness who had evidence that would absolutely prove client's innocence. You don't even remember the guy anymore; how do you defend yourself?

1 On the other hand, attorneys at BigLaw firms don't get many bar complaints. If the Ford Motor Co. CEO gets mad at you for botching a case he just takes his $5 million a year to the competition.
Ken Lammers

In Southwest Virginia the Troopers are going to start using motorcycles. The reason? So they can escape motorists attention in order to write more tickets and they can get through the traffic jams to arrive more quickly at the multiple accidents on I-81.
Ken Lammers

I commend this article by Ida-Gaye Warburton in the Capital Defense Journal to you all: 16 Cap.Def.J. 2, The Commandeering of Free Will: Brainwashing as a Legitimate Defense (2003). [Yeah, I know I probably used improper citation format. I'm a practitioner and nobody cares if I cite things properly anymore. I don't think I've even seen my bluebook in the last year.]

Selected Quotes:

Before brainwashing can become a doctrinally acceptable criminal defense, it must be narrowly defined to complement current legal principles. The defensive postures of duress and battered woman syndrome (BWS) offer brainwashing some hope of future acceptance.

. . .

Traditional interpretations of brainwashing . . . assume a relatively passive subject under the control of all-powerful . . . external agents who use coercive and manipulative techniques. The end result is a total negation of the old self and the emplacement of a new one.

. . .

The framework of the duress defense is applicable to brainwashing. Similar to a defendant asserting duress, a brainwashed defendant acknowledges that he acted consciously, even enthusiastically, fully aware of the wrongfulness of his actions. The brainwashing defense argues that despite the existence of mens rea the defendant is morally blameless because the guilty mind with which the defendant acted was not his own. Unlike duress, however, the threat does not have to be imminent. Rather, the defendant must establish that the crime was committed while under the coercive influence.

. . .

A cursory analysis of BWS in relation to brainwashing provides several lessons because both defenses involve a person coerced to act in a manner in which he or she would not act if not under the influence of another. First, expert testimony is necessary to dispel layperson views and to explain novel concepts. Second, lay witness testimony is useful to the expert's assertion that the actor exhibited indicia of coercion. Third, the defense is most effective when used for mitigation purposes, especially when it was first presented in the guilt/innocence phase.

. . .

During the guilt/innocence phase the defense should front load mitigation evidence through the use of expert and layperson testimony. Three types of information about the defendant should be provided at this stage. First, defense counsel should determine the susceptibility of the defendant to compelled conversion. . . . Second, counsel must discover the methods used to coerce the defendant. . . . Third, the character traits of the defendant before, during, and after the coercive influence was imposed are important to establish that the defendant was influence by another.

. . .

The testimony of lay witnesses such as relatives will be more effective during sentencing. The focus during guilt/innocence must be on explaining the defendant's intent, or more specifically, the personal lack of it. It is important, therefore, to classify and separate properly the different lay witnesses to establish the best defense possible.

. . .

Brainwashing may be offered as an element of the insanity defense to make the defense more palatable to the judicial machinery.


It's a well written, interesting article which ties in to the recent Malvo defense. I know the VC3, which is the publisher of this journal, was involved in Malvo's defense but I don't know if Ms. Warburton was involved personally.


I am reminded by Fitz-Hume over at Begging the Question that " the Capital Defense Journal articles are available on Westlaw or can be ordered through the VC3 link."
08 January 2004           
Ken Lammers

Mock trials in Britian for new police and new barristers.
Ken Lammers

Further proof that if the feds arrest you it is good to have people to snitch on. This guy stole $11,000,000 and only gets 8 years in prison.
Ken Lammers


InstaPundit is discussing a story coming out of Iraq via this blog.

I'm fairly certain that this story is apocryphal. There are some indicators including the typed Arabic letter and the "drunk" American soldiers. I guarantee you that American forces are being kept dry for the duration. However, while these raise suspicions they are not enough to be dispositive. After all the letter could have been typed because it is formal and the soldiers could have tripped over a cache of ouzo.

What seals it for me is that I have heard this story - in multiple variations - before. Back when I was less hefty and a little younger I was an Arabic translator for the U.S. army. As such I was deployed to the Gulf during the first war. Kuwaitis were telling the exact same stories about Iraqi soldiers. While the details would vary the core was always something like this:

(1) Relative was taken by enemy soldiers.

(2) Relative was badly treated by enemy soldiers.

(3) Relative was killed by enemy soldiers.

At first the stories were much like this one. The longer we were there the more they were accepted and the more outrageous they became. Closer to the counter-invasion of Kuwait the story had grown to the point that Iraqi soldiers were raiding a neighborhood, arresting a couple young men, taking them away and torturing them, an officer calling the parents and telling them to gather the family together on Tuesday because they are getting the sons back, the family getting together and throwing a party, and the Iraqis showing up and dumping dead bodies in the middle of the party.

The problem was that not a single one of these stories was verified. None. But every Kuwaiti knew some variation of the story and would swear it to be true. They would find anyone who would listen and tell them this story and another story about Iraqis throwing babies out of incubators (that story got progressively worse as time went along as well). As far as anybody could tell it was pure propaganda.

Not that means this shouldn't be investigated. It must be. As demonstrated above, this has a good possibility of growing into some nasty propaganda and must be countered if at all possible.
Ken Lammers

If you are a member of the Sheriff's department and you decide to run against him you better win. Because if you don't you will be unemployed.
Ken Lammers

From the Right: Concern that our criminal law system is out of control.

Welcome to my world. Shocks to my system of beliefs came in rapid succession after I started doing criminal defense:

~ The absolute refusal of the courts to protect citizens from things like the more and more transparent pretext stops.

~ The expansion of Terry stops into the ability of police to shake down anyone anywhere.

~ Police allowed to go interrogate my client without me present as long as they don't ask about the specific charge on which I represent the client.

~ The ability of law enforcement to walk away after my client has refused to talk without me being present and then come back the next day and try again (and the next and the next as long as the officer stops each time the right to counsel is asserted).

~ The refusal of courts to recognize clear attempts by suspects to exercise their right to counsel because they did not phrase it in a manner which is precise.

~ Prosecutors holding hearings without the Defense attorney present in order to manipulate the system against Defendants (ala Malvo).

~ The fact that trial judges in the federal system have been reduced to little more than clerks for the prosecution, imposing whatever sentence the prosecutor tells them to impose.

et cetera et cetera et cetera
07 January 2004           
Ken Lammers

You really shouldn't corner a juror in the bathroom and tell her how evil the plaintiff is.
Ken Lammers

Ack ! ! !

O.K. As we all know, I seldom, barely ever, almost never make any mistakes. So, on those rare occasions when the unthinkable occurs I must make a note of it.

In this post, I said that The Firm was ruined for me because I realized that States don't test federal material. AV corrected me:
On the Virginia bar exam (just took it last July), we get hit w/ a ton of Federal Jurisdiction and a blend of Fed w/ state (particularly on "conflicts" questions.) One question actually asked if the defendants had preserved their rights for appeal and to spell them out (there were fed & state actions taken.) Moreover, we are told that if a point of Evidence comes up, we must look to the federal law. (Now, I did not see this on New York.....but for Connecticut, you were safe in writing the federal law as a response to most issues.) *shrug* Just FYI. :-)
Not one to take being told I am wrong laying down (especially about a bar exam I took), I looked into it.

Durn. Federal Practice and Procedure is one of the subjects on the Virginia bar exam. Well, O.K., there are a lot of subjects maybe my excuse can be that it wasn't one of the subjects on the test my year.

Double Durn! The fourth question on my test involved federal issues. Didn't remember that.

Okay, I'm wrong. I guess I can go back to enjoying The Firm. Although, I could claim that I meant States don't test on federal criminal law. I'd be lying but how would any of you know that?     oops.

BTW Virginia is a common law evidence State. Federal rules are probably close enough to get a pass but when you are in court and the other party starts talking about the res gestae exception to the hearsay rule you aren't going to find it in the federal rules.
Ken Lammers

Found in the Blawgosphere:

Gotta agree with Will Baude here. The courts are flooded by people who committed "ill thought out crimes." Drugs seem to be the most common cause of this particular type of crime and people who are jonesing don't particularly care if they are caught just as long as they get some money to get their next fix.

Case in point: There is a convenience store in the county wherein I live which will cash any check as long as you provide an ID and give a thumbprint. It has signs telling you that you are being filmed as you cash the check. But everybody knows it will cash all checks and, as a result, there is a steady stream of bad checks cashed there. Every drug addict in the county seems to make it there eventually to cash a check for a couple hundred dollars (a check he has stolen from somebody's mailbox or his employer or his mom, or . . .). They go to jail for a while, get back out on the street, and the next time they are really desperate for a fix go back and cash another check. It's obvious they will get caught but they don't stop.

C'est la vie.
Ken Lammers

Found around the Blawgosphere II:

I respectfully dissent comments on a man kept in prison despite being cleared by DNA evidence.

The Legal Reader points to a story wherein an illegal immigrant is punished for doing the right thing.

Southwest Virginia Law Blog points to a decision by the Virginia Court of Appeals that you waive your ability to make the Commonwealth prove jurisdiction if your client pleads "no contest." For what it's worth, I agree with that but I do not think that it relieves the Commonwealth of the burden of proof. The judge should still find that all the elements are proven. Not that you have any resort if he doesn't - you've given up your right to appeal. Not sure how this got in front of the appeals court.

Professor Yin has been kind enough to post my comment despite the fact that I obviously cannot spell.
Ken Lammers

Meanwhile in the U.K.:

(1) One of the most important protections of citizens' rights, double jeopardy, ain't no more.

(2) 1/4th of all teenagers have committed a crime in the last 12 months.

(3) People are committing suicide by cop.

(4) Bouncers are rising to the top of the criminal world.

(5) Despite strict gun control laws, "[f]igures released by the Home Office last month showed gun crime in Britain has doubled in the last five years."

(6) "[M]inisters revealed 60,000 criminals are to escape community service and get fines instead.
. . .
Home Secretary David Blunkett . . . also revealed 13,000 fewer criminals will be jailed over the next five years.

(7) British teenagers are facing the prospect of wearing electronic tagging devices while on parole.

(8) Britain's first black chief constable has taken office.

(9) There are arguments being made against the arming of police officers:
“International experience shows that routine arming of all police officers leads to additional police deaths from ‘blue-on-blue’ accidents, suicides by officers using their readily available firearms, and officers’ guns being used against them by criminals during struggles.”
Ken Lammers

It is rare when news articles comment on something police did right. However, every so often . . .

These officers spotted something wrong, turned around, and pulled into the store's parking lot just as the robbers came out the door.

Good instincts.
Ken Lammers

Otherwise, so far it's been a bad week for law enforcement:

(1) "[A] report by [Philadelphia's] Integrity and Accountability Office stated that rogue officers eluded discipline or received light punishments, even after being found guilty of egregious misconduct from sexual harassment to falsifying police reports.

It also said the department failed to implement reforms suggested two years ago, and concluded that an outside agency be called in to take over discipline."

(2) "Federal officials are investigating the death of a black teenager shot three times in the back last week by a Louisville police officer, an FBI spokesman said Tuesday.

Officer McKenzie Mattingly, working undercover, shot Michael Newby in the back Saturday night after they struggled for Mattingly's service handgun, Police Chief Robert White said. Mattingly was trying to buy drugs from Newby when the deal went wrong, White said.

O.K. I get a struggle for the gun, I get that the suspect can get shot multiple times by an officer fighting for his life and reacting with an adrenaline rush BUT . . . 3 shots in the back? Yeesh. I hope, for the officer's sake, that there is more to it than is in this article because that's awful hard to justify.

(3) "A San Francisco police officer is facing disciplinary charges for allegedly using jagged glass to gouge into a handcuffed suspect's face after the man was caught failing to pay cable car fare."
Ken Lammers

Here's a nightmare for you. Arrested on 8 counts of indecent exposure, an innocent man is finally exonerated. And there is such a ringing endorsement of his innocence:
"What it appears is that there was someone else who looked similar to him and is (now) in jail up in Minnesota. I think we probably believe that it was someone else and not Mr. Mullen."
Ken Lammers

FindLaw has started a monthly feature of weblogs entries of note. I think it somewhat misses the point of blogs (timely comments which can quickly become dated) but at least it's an attempt.
Ken Lammers

An 87 year old on trial for manslaughter.
06 January 2004           
Ken Lammers

DUI Plates for Ohio

As discussed previously here, this is the plate which Ohio will use for those convicted of DUI's who want restricted licenses. And, as previously discussed here's what law enforcement has to say:
The new mandated use of these special license plates could help law enforcement in identifying multiple offenders. These drivers are typically the most dangerous offenders on the streets.
So now people are going to get pulled over, under the thinnest of pretexts, for the color of their plates.

I must say that I am impressed with the Sheriff's candor as to the collateral effects of this new law.
Ken Lammers

The media is fighting the disturbing trend toward secret trials.
Ken Lammers

It looks like the 9th Circuit doesn't believe that taking the DNA of prisoners is unconstitutional.
05 January 2004           
Ken Lammers

Sometimes I hate the fact that I'm a Lawyer:

Back in 1993 I watched The Firm and thought it was a great film. Yesterday I watched it again and saw a flaw which has been bugging me ever since. At the end the F.B.I. agent asks how the protagonist thought up mail fraud. Answer: "It was on the Bar exam."

Since when do States test for federal law? According to this page it's not one of the subjects on the Tennessee exam.

Another unfortunate encroachment of reality upon yet another perfectly enjoyable lawyer drama.
04 January 2004           
Ken Lammers

The Jackson Case:

Is a "self-selecting" jury unconstitutional?

If this theory wins the day there are a huge number of jury trials out there that are unconstitutional. Probably the only way to get around jurors "self-selecting" by not showing up or not returning their summons would be for deputies to go out on the street and grab the first12 people who walked by.
Ken Lammers

Homicide rates:

Chicago's homicide rate dropped to 599 (down 49 and the first time under 600 since 1967) but it still had the highest rate in the U.S. Meanwhile, Philadelphia's rate went up 20% from 288 to 347.

The city with the highest per capita homicide rate is, yet again, Gary, Indiana. Unless you are an absolutely maniacal Music Man fan, why would you live in that city?
Ken Lammers

Death Arguments:

(1) A fairly cogent argument against the death penalty because it is ineffective and only inflicted upon the poor.

(2) An attorney subpoenas all the files in the entire State of Illinois (maybe a slight exaggeration but not much) in order to see if the death penalty has become as arbitrary as it was prior to 1972.
Ken Lammers

Death - Overseas:

(1) A quick snapshot of the moment when the death penalty was gotten rid of in Britain.

(2) Can you be found guilty of murder if you think you are shooting at a ghost? Apparently, before 1985 you could but the article doesn't tell us what happened in the 1985 English case. Does anyone know?

(3) Well, the Indonesian court couldn't increase a death penalty on appeal but it did increase the co-defendant's sentence.

(4) China sentences a Falun Gong member to death for killing beggars.
Ken Lammers

It must be nice to have diplomatic immunity.
Ken Lammers

You know, once upon a time you got sent to the principal's office for a spanking or suspension. Nowadays, even if he's in a State where spanking is legal, any principal who wants to keep his job and prefers not to get sued will not touch a student. And suspension is just a day out of school; it's more of a reward for students than a punishment. So what's the solution?

Throw 'em in detention.
Ken Lammers


I just tripped over this webpage which describes old-time crimes and punishments.
Ken Lammers

DUI's in the News:

(1) SW Virginia Law questions the $20k figure which this article gives as the cost of a DUI trial / conviction. I gotta say I am dubious as to the quoted costs - especially after I read what I'm supposed to get paid to represent Defendants with DUI's: $4,000. How in the world did they get that figure? It seems just a wee bit out of the normal fee range.

(2) In Ohio they are going to start forcing people to put special colored plates on their cars if they are convicted of driving under the influence and have a restricted license. Interesting. Not sure how I feel about that. I really don't have a problem with punishments that stigmatize or embarrass. Often that is the most effective way to enforce a law. Still, I can just see these people being constantly followed down the road by police and stopped on the slightest pretext. This is also a Lawyer's Relief Bill. Just imagine the people of a certain status (associates trying to make partner; legislators; ministers; etc.) who will pay a ton of money for an attorney to fight tooth and nail in the attempt to keep the plate off their car. Hmmm . . . maybe it's time to move to Ohio . . .
Ken Lammers

Rehnquist has criticized the latest changes Congress made to the sentencing guidelines without involving judges.

Of course, this was always one of the greatest dangers which the sentencing guidelines presented. Legislators need something to brag about in order to get re-elected. Telling the people back home about your vote on some sub-committee to raise allotted research money for development of a microchip which won't be available for at least ten years and will only have practical use in a nuclear submarine just isn't going to connect with Ma and Pa citizen. Telling them that you voted to make it impossible for some soft hearted judge to let a nasty, evil criminal escape one day of his sentence is something that the people will understand. And the folks back home will certainly understand if your opponent points out in the next election that you voted to allow criminals to get out of jail without serving the full term they were supposed to.

There will always be this pressure to make the sentencing harsher and since the supreme court has ceded this formerly judicial power to the Legislature there's not much more that the judges can do but gripe. After all, once you have a decision which states Congress' power grab was constitutional why do you need to involve the judges anymore?
Ken Lammers

This column contains an excellent description of what is disturbing about Brady decisions being solely in the hands of the prosecution. It discusses whether evidence of prejudice should be allowed in the Jackson and Kobe trials.

In my mind, the evidence of prejudice is definitely in during the Jackson trial. That case looks like a witch hunt proceeding from pre-existing prejudices in the prosecutor's office. What little I know of the facts - as portrayed by the media - makes it seem as though this is an extremely tenuous case, with bad witnesses, that was probably brought in order to see if anything more substantial would fall into the prosecutor's lap if he shook the tree. You have to seriously wonder if this case would have been brought forward by other prosecutors' offices on evidence this weak.

In the Kobe case I think there's nothing more to the T-shirt than plain tackiness. It was never intended to air publicly and its exposure has hurt the prosecution. It doesn't show any predisposition prior to the police investigation or the decision of the prosecutor's office to pursue the case. Still, it's a nightmare for the prosecutor. The Defense is almost assuredly going to try and use it to show racial prejudice as motivation for the prosecution; it's going be a tough call for the judge. And the fact that the two T's on the website which have "hangmen" on them both relate to black men will weigh in the Defense's favor.

I guess what I'm saying is that, in my opinion, the Jackson case appears to have clear prejudice which should be introduced while the Kobe case appears to be stupidity borne out of cockiness. Therefore, the Jackson prejudice should be explored indepth during the trial while the Kobe "prejudice" examination should be held in check. A judge should probably allow it in but keep tight control so that it doesn't have an effect out of proportion to what it is.
03 January 2004           
Ken Lammers

Juries in the News:

(1) In the Martha trial the judge has forbidden the media from contacting prospective jurors. It kinda worries me that he actually had to take that step. It's even more worrisome that they are questioning whether he can do it.

(2) The process of putting juries together.

(3) And the penalty for not showing up to serve.
Ken Lammers

Bank robberies are up in NY.
Ken Lammers

Wow. 50+ bank robberies. Quite a career.

It was tacky to arrest him while he was with his kid.
Ken Lammers

Even the chief of police isn't allowed to poach.
01 January 2004           
Ken Lammers

My Political Leanings

"Centrists favor selective government intervention and emphasize practical solutions to current problems. They tend to keep an open mind on new issues. Many centrists feel that government serves as a check on excessive liberty."

Not too surprising. When I take these sorts of tests nowadays I tend to be either dead on center or one or two points to the right or toward authoritarian. When I used to take this sort of test in college I scored further right but then life intervened. If I still believed that the system worked the way it is supposed to I suspect my score would be further right again but still in the box because my beliefs are tempered by the teachings of the Church.

Test found here.
Ken Lammers

5 Interesting Events of My Legal Year

(1) I was actually able to use a quote from Holmes' The Common Law in a closing argument in a jury trial. It was in a case where the issue at trial was whether my client "knowingly and wilfully injured" a guard and the guard couldn't say whether my client meant to hit him (the guard had charged into the phone my client was swinging around himself). I stood up and started talking about how we lawyers read all the time and how I was forcing myself to read this old book by a famous judge. I allowed how I wasn't getting too much of worth from the book but that I'd stumbled over this one quote which applied to this case: "Even a dog knows the difference between being kicked and being stumbled over." It must have worked; the jury got rid of the felony.

(2) One of the local judges mispronounced my name for years. Lammers rhymes with hammers; he would always say "Lame (rhyme with same) ers." I was in court with a client who was absolutely bonkers. Relatively harmless, and not far enough gone that he didn't know the difference between right and wrong, but still absolutely bonkers (the kind of guy who calls, leaves a 30 minute message on voice mail, and says nothing concerning the case). As the case was wrapping up, the judge addressed some question to me: "Mr. Lame-ers, do you . . ." All of the sudden my client bounced forward and said, "Your Honor, my attorney's name is Mr. Lammers, not Mr. Lame-ers." The judge looked at my client and then at me and, without skipping a beat, continued, "Mr. Lame-ers, do you have any mitigation to present?"

But, you know what? From that day forward the judge has pronounced my name correctly.

(3) I got a job offer from Wolfram & Hart. As part of some new recruitment program they approached me. When I inquired as to why they were interested they stated that they were looking for honest lawyers and figured that since I am relatively poor I must be honest. I declined their offer but if any other firm out there is willing to hire me at a salary anywhere close and not require me to sign quite as long a contract please drop a line.

(4) Started bumping into federal agents and agencies as my practice expands. I've dealt with F.B.I. and D.E.A. agents but I think the most interesting thing concerned the Department of Homeland Security. My illegal alien client stood charged with grand larceny. When he arrived at court he pulled out a letter and handed it to me. It was a letter from the Department of Homeland Security telling him that he had to report whether he was convicted and if it was a felony or a misdemeanor. He was more worried about it then he was the court hearing. Of course, since he was an illegal alien he could probably have disappeared 5 minutes after the hearing and never be heard from again. Oh yeah, that letter made me feel like our homeland is more secure. Next thing you know they'll be sending letters to Osama asking him to self report his whereabouts and any illegal activities he might have been involved in.

(5) The federal building in Richmond houses magistrates, district courts, bankruptcy courts and the 4th Circuit. I'm sitting in the law library trying to figure out exactly how deep a hole my client is in when a young lady walks in with a severe black and white suit and her hair tied back so tightly it seemed to stretch her face back (and she was still kinda cute). She tells the librarian that she's a clerk from the 4th Circuit and she doesn't know where things are down here because she's accustomed to using their library. Then she asks the librarian where the Rules of the Virginia Supreme Court are located. I kid you not, for the next 5+ minutes they crisscross the library (it ain't that big) looking for them. About the fourth time they are going past me I look up and say, "If you're looking for the Rules they're in Michie's."1 They both looked at me confused so I elaborated, "The laws of Virginia." Again looks of non-comprehension. Suddenly, the clerk looks at me and says, "Oh, you mean the code."

"No, I meant the friggin' Great Charter." Alas, I didn't actually snap that answer back. Part of me really wishes I had but all I did was nod and they whisked off to complete their search. To this day I don't know if she realized how superior she sounded. I doubt it. Looking back, I figure it was just the light bulb coming on and her saying the word she expected to hear.

I was piqued at the time but now I find it more humorous than anything. A display of ignorance over something that a person who had been actually practicing in Virginia for more than a month would know - immediately followed by what appeared to be disdain over improper wording. Silliness. Anyway, it would've never even made it up here on the blawg except I couldn't think of a fifth thing to fill out this post before I go to bed. Ya'll have a good night, y'hear?

1 Until a couple years ago the sole publisher of Virginia annotated statutes was Michie's. West now publishes a better version but Michie's is the more widely used and everyone just refers to the annotated statutes as "Michie's." (pronounced Mickey's)

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In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts probably don't even operate as described herein. In fact - just in case someone is stoned enough to start quoting this blawg as authority to a judge - It is hereby stated that everything in this blog is pure fiction.


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