With apologies, posting has been scarce lately because of three petitions due to the Virginia Supreme Court and one memo due to a Circuit Court for an argument on Monday. Additionally my home modem has gone down and I have to wait until the cable company and I can both be at my apartment on the same day to fix it.
I'll work on getting back up and maybe see if I can talk a couple of people into guest hosting for a while.
Wow. I never thought that Virginia would be able to fill all its prisons. Now the Commonwealth wants one or two more. Here's a thought - before we build new prisons why don't we stop renting space in ours to other States and use those spaces?
He makes five points and I will address each briefly.
The First Reform: Keep Highly Educated Jurors in the Pool
I am with him on this one. I've done a number of jury trials and have yet to see a doctor, cleric, accountant, or lawyer in any of the pools. Called for jury duty once myself I sent in the brief questionare and got an excuse back because I am an attorney. Personally, I don't think anyone should be excused from duty unless they are police or firemen, judges or people who actually work for the courts.
The Fourth Reform: Restore the Notion of Duty, and the Sense of Exercising a Right
Throw 'em in jail if they don't come to do their jury duty.
The Fifth (Possible) Reform: Relax Unanimity?
ABSOLUTELY NOT. I reject the premise under which this is offered: that there is no truth powerful enough to cut across lines of class, race, religion, etc. Why would anyone think that? Every day juries convict or acquit by finding that truth. And let's be honest here. Juries, even though they are required to reach unanimous decisions, convict far more often than they acquit or hang.
Illinois v Fisher: If you are going to argue that the police destroyed evidence essential to your case it would probably be better to do so in a case wherein the police hadn't already run 4 tests on the drug (all with inculpatory results) and your client went on the lam for over 10 years (during which time the samples were destroyed).
A Week in the Life of a Criminal Defense Attorney:
Sorry I missed this feature last week. Someday maybe I'll get back to the client who was mad that I didn't get him out of jail to go to his son's funeral, the client who pulled out a three page (front & back) manifesto at her sentencing hearing, and/or the prosecution witness who "forgot" everything which he testified to in the prelim because he knew his lies in the prelim would conflict with the lies he was telling in Circuit Court. Someday.
Monday: It's supposed to be a holiday so I only spend half the day at the office. At 3 p.m. I meet with a new federal client and his mother. Can't really tell them too much because the indictment doesn't have weight included in the drug charges so I don't know what the guidelines or mandatory minimums might show.
Tuesday: Around noon it starts snowing. I go to court in the local general district court at 1 p.m. but my client wasn't able to get down from Boston because of the weather. As soon as the case is continued I book for Richmond to get to the federal court. All the parking (including the paid lots) near the courthouse is occupied. I finally find a spot 6 blocks away and walk to the courthouse in a snowstorm. By the time I get there I am sopping wet.
I get to the courtroom with about 15 minutes to spare and there stands client, mother, and father whom they had not informed of this matter until the night before when Client needed to borrow one of his suits for court. Father spends the next 5-10 minutes quizzing me about my qualifications. Finally satisfied, we are standing around talking when an AUSA walks up and starts talking with me. The parents and Client start to talk with him as well but I cut them off and ask them not to. Seeing shock in their eyes at my effrontery, I explain that he's a prosecutor which mollifies them. Nevertheless, Father turns to the AUSA and apologizes: "I'm sorry man. I didn't realize you were a prosecutor. I thought you were a lawyer." Shortly thereafter we are called into court and arraignment occurs. It turns out that the amounts of drugs in play are miniscule - the kind of stuff that even State courts wouldn't be all that worried about.
After Client and his parents leave, I am standing there talking to the prosecutor when he mentions that he saw that one of my other court-appointed clients had hired another attorney. It was news to me so I trudged up to the clerk's office, checked the file, and there was a letter telling the court that another attorney was taking over the case. Not really a huge problem (Client had not been in contact with me for weeks) but unusual in that the other attorney hadn't even contacted me (the motion for substitution turned up later in the week in the mail). Thankfully, by the time I have finished with everything the snow had stopped and the walk back to my car was dry.
Wednesday: A sentencing hearing this morning for an elderly man who is very hard of hearing. This leads to a surreal hearing wherein the Judge and I are pretty much yelling in order to be loud enough for him to hear us. In the end it turned out well enough. Client got 6 months in jail which was less than a third of what the guidelines recommended (because of a serious felony 30 years ago).
Thursday: No court today so I spend a fair portion researching a case which I expect to be hired on Friday. I can't find the historical statutes which I am looking for so I call a buddy who handles even more traffic law than I do. He isn't much help but he points out that the court doesn't have jurisdiction to be doing what it is. I research the point and it looks like he's correct so I prep that argument for court.
Friday: Client shows up at the courthouse and pays me on the spot. Shortly thereafter (at least within a couple hours) we are called before the bench, Before we even plead I launch into my explanation of why the court doesn't have jurisdiction (admittedly this discussion is cleaned up some):
Me: Your honor will notice that when the court convicted my client of DUI in 2001 it suspended his 30 day sentence, suspended his license for a year and ordered him into VASAP (which he had to do in order to get a restricted license). The court also kept him under supervision for 12 months. He failed out of VASAP and had his license revoked. Then in 2003 DMV refused to renew his license and he came back before this court. He shouldn't have - it should have been a private matter between him VASAP and DMV. The 12 months of continued court involvement through supervision had already passed and the court's ability to amend the sentence (and add longer court supervision) ended 21 days after he was sentenced. He's now flunked out of VASAP again and they have asked this court to show cause him. The court didn't have jurisdiction to send him back and therefore it doesn't have jurisdiction today."
Judge: "The Supreme Court tells me that as long as he hasn't completed VASAP I retain jurisdiction."
Me: "There's case law on that?"
Judge: "No, I called the Supreme Court's researchers and they told me." [ed. note: I didn't know the Supreme Court did this and let me tell you how thrilled I am to find out that some part of that august body may be directing judges as to what the law means in a way that I can't access or advise my clients about]
Judge: "And, didn't DMV send your client back to the court?"
Me: "The DMV is not a source to be relied upon for interpretation of the law."
Judge: "Well, if the sources are the Supreme Court , me, and DMV I think it's pretty safe to assume I have jurisdiction. I take it you're going to disagree with me?"
Prosecutor: "Great, we've got a test case! Why don't you find him guilty, sentence him and give him a PR bond so that we can argue this indepth in the court above?"
At which point the judge did just that. And I appealed. All in all, considering the fact that I was standing there telling a judge that I thought she had made a mistake and that I thought her interpretation of the law was wrong, it remained amazingly cordial. The judge even asked me to be sure that I told her how it came out.
The afternoon was a little dull. Open office hours resulted in one client not showing for a scheduled appointment and one client dropping by and chatting for over a hour. I really didn't have much of anything new to tell him but we went over everything again anyway and it killed some time.
All of us in Virginia have been waiting with baited breath in hope of a more rational criminal code. It's not coming. Showing an amazing amount of cowardice the legislators turn away from much needed changes because the Merchants' Association told them to.
And that story which the Association fops off on the legislators each time serious changes are contemplated is pure, unadulterated [garbage]. Professional criminals do not purposefully keep their thefts just under $200 because they know it's a misdemeanor. The 3d time they are caught (and believe me the low level criminals who do this kind of check scamming and shoplifting are caught) it's a felony anyway and it would still be if the threshold for a felony rises to a more sane amount such as $500. On the other hand, how many times have I stood there with a stupid 18 year old, no previous record kid who, on an immature impulse, shoplifted a $208 video card or a really cool $225 MP3 player or whatever and watched his life be destroyed as a felony is hung around his neck for the rest of it? Too many.
The prosecutors have stayed the course using an affidavit from the man's estranged son as proof that all the events that everyone else is claiming never occurred actually did but it seems awfully weak.
Hmmm . . . Not quite sure what to make of this. The attorney was either a bumbling fool or very worried about the role race might play in the jury's deliberations and trying to make them rise above it. I suspect that one had to be in the courtroom to really know.
It's always funny when good news occurs in law enforcement. Dropping crime statistics are not good for business and perennially low crime statistics are terrible when you want to increase your force and your budget. This leads police forces everywhere to often claim that the crime situation is worse than it looks. It also makes me very suspicious when the Atlanta Chief of Police says the years of good news were a complete fabrication at the same time he asks for "money to add more than 300 street officers to the 1,600-member police force to crack down on the drug trade."
As far as it goes, I really don't have a problem with that. I find that most of the time when my client is getting his third DUI he is driving someone else's car. However, I do think it should be at the judge's option for those few cases where the equities would favor leaving the car with the offender. ie: Two DUI's 9 years ago and a DUI this year because he was stopped at a yuletide DUI checkpoint and blew a .09, employed, wife also employed, the one car gets both to work, etc.
Normally when I see DUI laws going too far I go bonkers and rant (just a little) here. But this is so far over the edge that all I can do is shake my head in wonderment and assume the entire House in New Mexico wants to be voted out of office.
And that's going to go over real well when gramma Smith can't get her car to start because she can't get the device to register a sample.
All I can think is that the members must think that the Senate will reject this and they will get the benefit of being able to tell the prohibitionists that they tried without the angering the entire population. This is even dumber than Virginia almost throwing citizens in jail for a first DUI.
Gotta agree with the comment of B.B. (who pointed this out to me) that this would be good for business . . . for the car dealerships on the other side of the border.
Must admit I haven't read the whole article yet - just spotted it this morning and have not the time for what looks like an indepth read.
A quick, off the cuff comment - The statement above feels true. However, this is not a phenomenon limited to black judges. Of course, I am only dealing from my perceptions. Nevertheless, one of the most dangerous factors for a client is when a judge feels the acts of that client reflect poorly on that judge's "group" (however that group be defined) and therefore upon the judge. Taking white judges as an example, generally a white judge doesn't feel the kind of connection between himself and white defendants which seems to be assumed between black judges and black defendants. I'd postulate that this is because of all sorts of social and historical factors beyond the scope of this comment (and beyond my expertise - although Mel Brooks flashbacks keep popping into my head "We'll take the _______ and the _______ but we don't want the Irish!"). The one set of cases where I see "white" become a group identity between the judge and client are the cross burning cases.
Now, those of you reading this who are Yankees or from parts unknown probably don't get this but I'd bet most of you who practice in the South do. I watched one of the most level-headed, even keeled jurists I know almost come over his bench in rage at some young white punks who burnt a cross in a black family's yard. I don't care what you tell that judge, he is not going to put up with this kind of activity in this day and age. I've seen a number of these cases1 (thankfully never had one) and come to the conclusion that you would probably be better off trying it in front of a black judge who might tread a little bit more lightly (while this would be rude to the black judge it is, unfortunately at times, my job to be rude when necessary - not that I get to pick the judge). White judges do not feel constrained at all in these cases. They will lecture your client about how ignorant he is and then give him a nice hefty sentence to drive the point home. It's personal - Client has made him and his look like an @ss and the judge is mad because he knows he's included in that group.
1 Not any organized group thing. Usually it's been punk white kids who are upset that the black kid living there has treated someone's sister poorly or not paid for the marijuana he purchased last week or belongs in a rival set or (fill in the blank). They get drunk and somebody comes up with this "wonderful" idea of how to scare the kid they're mad at. Not being able to think five minutes into the future they don't realize how this might piss everybody in the world off and cause the kid's parents to call the police.
A teenager who seriously injured two classmates with a crossbow has been found not guilty of attempted murder in the Supreme Court in Newcastle.
The youth was facing five charges after shooting his ex-girlfriend with a crossbow at Tomaree high school last April.
The girl was wounded in her chest while another girl was injured in the legs.
In handing down his verdict in the judge-only trial, Justice Graham Barr told the court he was satisfied the boy was telling the truth when he said he wanted to harm but not kill his former girlfriend.
Justice Barr has instead accepted the accused's guilty plea to malicious wounding with intent to cause grievous bodily harm.
The boy will also be convicted of the same charge for wounding his second victim and illegally possessing a prohibited weapon in the form of a crossbow.
He has been acquitted of charges relating to throwing a petrol bomb after the initial attack.
Cuz', you know, when you shoot someone in the chest with a crossbow you wouldn't be aiming for the heart, lungs, major arteries, etc.
And I'd add one more. If you want to fight that 16 mph over the limit ticket to the death in a hour long case, go buy one of those idiotic books from the bookstore and do it yourself. The judge may indulge you in whatever fantasy approach those books try to sell. As for me? If I try to argue some of the insane things those books say I should the judge is going to rip my head off and punish you as much as he can for being stupid enough to hire me.
There is a dynamic at work here. First, you must realize the hundreds of people who go through any major jurisdiction's courtroom each month who are DUI (first conviction). These are usually not the kind of people who will ever see the inside of a jail. They leave the courthouse with a healthy fine, a little suspended jail time over their head, and a restricted license. We must remember that these are all voters. Most come to the courthouse with trepidation and leave feeling duly chastised. They leave with a punishment that the general citizenry will tolerate - and maybe even embrace - as appropriate.
At this point pressure from prohibitionist groups such as MADD can push Legislators around. Ever increasing punishments on subsequent DUI's are acceptable because not so many people are subject to those punishments and they are from citizens less likely to vote (and after a 3d DUI they're felons and can't vote so nobody cares). These groups can even push a little on the 1st DUI by urging increased fines or lowered BAC levels. A perfect analysis of how this works is found in this note at Legal Fiction about single issue voting (I find that I only agree with this Blog about 20% of the time but it does some interesting analysis - especially when not discussing Southern issues).
However, there comes a point where the political survival instinct kicks in. Much of what is passed in the ever stiffening DUI laws is acceptable to the general populace because the populace sees it effecting the ubiquitous "them." These laws don't effect "us" because we would never get a second DUI (or, Heaven-forbid, a third). On the other hand, the three day jail sentence has an excellent chance of crossing over and impacting "us." Suddenly Uncle Joe or Dad or your girlfriend or your husband or your pastor or your doctor or your accountant (upstanding citizens who could never even conceive of the mens rea needed to try and float a check until payday, much less purposefully break the law) is going to jail for three days with the hooligans. That's just unacceptable. The potential backlash is easily foreseeable by any politician with a little sense. Angry citizens coalesce as "real people" start going to jail. Letters and phone calls pour into the office and other political actors are also upset. Judges and prosecutors tire quickly of numerous hard fought trials over DUI's which begin to clog the court's docket (while we Defense attorneys are chuckling all the way to the bank about how this was a guaranty that we'd be able to pay our bills). Prosecutors, elected officials themselves, get really tired of getting painted as the bad guys after about the 3d television news report talking about how they've sent fathers and pastors and doctors and accountants (upstanding citizens who could never even conceive of the mens rea needed to try and float a check until payday, much less purposefully break the law) to jail.
The politician faces a lot of pressure to "fix this." He's placed in a very difficult situation. He can see the electorate and other officials turning on him, probably in numbers great enough to make the next election very, very difficult to win. Yet, he knows that if he goes back, relents, and somehow gets a statute passed which takes the penalty away it will not get him any benefits. The citizenry will be content with a return to the status quo which it will not credit to him because he is the one who messed it up to begin with. But the prohibitionists will go nuts and during the next election will paint him as pro-driving drunk, making his election very, very difficult.
What's the solution? You make absolutely sure that law never makes it to the books. I'm kinda shocked it got as far as it did. I always thought our politicians had a little more foresight.
An officer on his fourth day as a policeman shoots and kills someone with stolen plates who initially refused to stop, when stopped got out of his car and came at the police car, then returned to the passenger side of this car and reached in to grab something. The something turned out to be a cologne bottle.
And the prosecutor charges him with criminally negligent homicide.
How in the world did that ever go to trial? Leaving aside the smoke and mirrors about drugs and stolen plates/tags, if an officer has you pulled over and you reach into your car and raise a solid object he has every right to defend himself. No officer in his right mind is going to think you are grabbing a cologne bottle.
(b) Travel With Intent To Engage in Sexual Act With a Juvenile. -
A person who travels in interstate commerce, or conspires to do so, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, or conspires to do so, for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States shall be fined under this title, imprisoned not more than 15 years, or both.
"The putative basis is Congress' ability to regulate interstate and foreign commerce. Interstate travel, ok. Foreign travel, that's a real stretch, constitutionally. . . I think (b) was added more recently, perhaps last year as part of the PROTECT Act. "
Richard Campbell provides these insights:
>What's the basis for jurisdiction?
"Nationality jurisdiction" or "you're an American, you're automatically subject to US law."
There are 5 more or less accepted principles for when a country has a basis for jurisdiction for an act committed outside its borders:
Territorial - if the act was does inside the country or was intended to produce harm inside the country (smuggling drugs destined for the US, say).
Nationality - a country can exercise jurisdiction over its citizens.
Protective - similar to the target country piece of territoriality, allows the assertion of jurisdiction where an act threatens the country's national security or governmental functions.
Universal - for crimes like piracy and terrorism, any country may assert jurisdiction (this is much more controversial, like the Belgian attempt to assert jurisdiction over all war crimes).
Passive Personal - if an act was against a person from the target country (murdering an American, say).
In this case, there is an explicit law making sex tourism a rather harshly punishable crime.
[ed. comment: Here Richard answers the question I asked (jurisdiction) while Tim answered the question I meant to ask: What are the constitutional underpinnings of statutes allowing the federal government to do this? Funny, I would have expected some sort of answer having to do with the federal government's unique role as the entity which deals with foreign powers]
>Is there a crime in the U.S. code which makes it illegal to conspire to violate a U.S. law in another country? Is there a statute in the U.S. code which makes it illegal to conspire to violate another country's laws?
18 USC § 2423, while not as general, makes it illegal to:
"(b) Travel with intent to engage in illicitsexual conductt. A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.
(c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both."
"illicit sexual conduct" is defined elsewhere to include child prostitution, rape, statutory rape and a couple of other things.
[ed.note: The statute as quoted by Richard is the proper statute. Strangely none of the public sources (FindLaw, Cornell, or even the House of Representatives) shows the change. I had to go to WestLaw to confirm. This is the modern language although the article does seem to indicate that the Defendant must have been charged under the older version. Not that it did him any good.]
Now that the emotional response is out of the way, I have questions (the article is woefully underinformative). What's the basis for jurisdiction? Are there laws against this in the countries where the acts occurred? If so, why wasn't he tried there? What establishes that breaking the U.S.'s law in another country without any intent to do so in the U.S. is a crime? Is there a crime in the U.S. code which makes it illegal to conspire to violate a U.S. law in another country? Is there a statute in the U.S. code which makes it illegal to conspire to violate another country's laws?
I've never had anything even remotely similar to this sort of case so I've never researched these issues. If anyone out there has any knowledge of the case or the principles behind it I would appreciate any info.
Generally, I follow the Church's guidance that the death penalty is not really justifiable in a modern society. But sometimes the visceral reaction to people doing something as evil as engaging in a gun battle in front of an elementary school brings back some of those good old Kentucky-boy instincts and I think, "Those people just need killing." Just for a second (or a minute, or five minutes, or . . .); then rational/moral thought kicks in.
Must admit that it hasn't yet in this case but it will eventually. I think.
How? How is subpoenaing medical records not an attempt to abrogate the doctor-patient privilege? The activity which the feds are trying to stop is evil and getting those records would almost certainly make prosecution far easier. But isn't it always the clarion call of those who wish to break privilege (whether they be prosecution or Defense) that it's necessary in this case and it won't set bad precedent because it should only apply in this limited circumstance and anyway, we aren't really asking for privilege to be broken because [insert technicality here]?
An Old Friend kindly pointed out to me that the purpose of these subpoenaes is not to build cases in order to prosecute the doctors but to allow the Administration to defend the constitutionality of the law (apparently, the Government will somehow seek to introduce the records as proof that in the past, doctors have performed the now-banned procedure although it wasn't "medically necessary). OF posits that this makes the action even less defendable. I agree.
It worked pretty dang good for us when I was in the Army. At night, in the featureless Saudi desert we ended up in the right place when the LT used it and we all know how dangerous a Lieutenant with a compass is.
A Week in the Life of a Criminal Defense Lawyer: (Last Week)
Monday: No trials. I go over to the courthouse and while I'm discussing something with another lawyer I see one of my former clients getting pretried for statutory burglary, abduction, and grand larceny. His immigrant parents are there and they don't understand anything that's going on. I take them out to a conference room and after some back and forth they seem to understand what's going on. Afterwards I go back to my office and put the finishing touches on a brief for a suppression issue. Late in the afternoon the client's father comes to my office. Figuring that he's a hard working guy with a family I quote him a rock bottom price. He pulls out a wallet stuffed with hundred dollar bills and counts out my fee (and leaves much more in the wallet). Oh well . . . that's what I get for not trying to be a money-grubber.
Tuesday: Another day with no trials. I drop off some papers at the courthouse and then go visit clients at the jails. One of my clients has bonded out but not bothered to come see me. The client whose parents hired me the day before has already been shipped to the regional jail so I take a couple of hours to travel out there. The only thing of note that happens (which I can talk about) is that the jail sends the wrong person out to talk to me. I look up through the glass and the guy's the right ethnic group but he's not my client. When I tell him this he laughs, tells me that the guards can't tell their names apart, and says he'll go back down and get my client sent up. He leaves and in about 10 minutes my client arrives.
Wednesday: In the morning I go to court and my client pleads guilty to possession of cocaine. That was supposed to happen. What wasn't supposed to happen was that when I got to court I found out my client had been violated by pretrial services for testing positive and skipping a few drugs screenings. After a pretty little bit of tap-dancing the judge agrees to let my client stay on bond until his sentencing (with more intense supervision).
In the afternoon I go off to the US Attorney's office in Richmond to get copies of all the papers in my client's file and the files of his co-defendants. The AUSA I'm dealing with is a pleasant enough guy but it was kind of a weird meeting. Apparently because he has back problems he doesn't sit in his office. Therefore, the whole time I'm sitting comfortably he was standing on the other side of his desk. It wasn't intimidating or anything; I just felt like I was being a little rude sitting there while the poor guy had to stand. Altogether, substantively it was an unremarkable meeting. Although, I must say that when the third person told me about their 99+% conviction rate I had to use a lot of willpower to keep from pointing out why.
Thursday: In the morning I go to court to make sure my client has actually been extradited to Kentucky to face his third strike (he has). Then, while waiting for an 11:00 bond hearing a guy just walks up to me in the hall and hires me on the spot to represent him in a DUI set for later this month. At 11:00 I go in and argue a bond hearing for the client whose parents hired me Monday. It was bad. My client was clearly the least culpable of the three co-defendants but during the hearing the prosecutor alleges that it was preplanned, that a gun might have been involved, and that my client confessed. The judge denies any bond. Afterwards while I am explaining what happened to his parents both pretty much disintegrate when they realize that the prosecution is alleging a gun and that the prosecutor is saying that Client confessed.
In the afternoon I go to court with a client who is accused of a couple check cashing charges and a charge of bringing drugs into the jail. When I tried to negotiate with the prosecutor I got told she was lucky they weren't bringing several more charges because the drugs she brought into the jail were 4 different types of class I or II drugs. Consequently, Client pleads guilty on the charges as they stand. As Client is leaving the courthouse with her mother, I hear Mother tell Client, "Pshshssst. That lawyer is terrible. He hasn't done anything for you."
All in all, this day stinks.
Friday: The morning goes pretty well. I get one client's felony embezzlement changed to a misdemeanor with only 4 weekends in jail and my second client's driving with a suspended license gets changed to driving without a license so that his license is not suspended again (he got it back before trial). Afterward I am standing around with a couple other lawyers in the hall talking when a really hot looking young woman walks by wearing clothes that are a little on the tight side. Being the male chauvinist pig that I am, she catches my attention. As I watch, she walks up to the courtroom door. She looks in the glass window at the (male) judge. She reaches up and pushes her breasts up and in and pulls the top of her blouse open a few inches more so that even more cleavage is showing. Then she opens the door and goes into the courtroom. Unfortunately, I wasn't able to stick around and see if it helped her any with the judge.
Half a hour after leaving the courthouse, during lunch, the mother of a client who had been recently assigned to me calls. She had also called while I was in court but I had only gotten that message once I left the building (for some reason the judges just aren't all that fond of cell phones in the courthouse). Thankfully, she had the decency to let me call her back when I got back to my office. However, once we have the conversation it does not go well. She wants her child to get therapy while he is in jail. For the umpteenth time I have to explain to a parent that the jail just isn't going to provide for that service and for the umpteenth time a parent gets mad at me about something over which I have no control ("That's just not going to be an acceptable answer!"). So I, being the good lawyer that I am, punt. Mother has told me that the kid threatened suicide to her several times since being locked up. I call the jail and tell a lieutenant about the client's future threat to harm himself and possibly others (I'm obligated to do that anyway). Then I try to lean on him a little to get some sort of promise that a psychologist will meet with client. The lieutenant finds it all pretty humorous but, pursuant to jail policy, he won't promise anything other than that Client will be taken care of. I call mother back and tell her this (which I had told her would be the result prior to the call) and it placates her for the moment. Who knows what will happen this week when she realizes that the jail really isn't going to give her child expensive medicine or provide ongoing psychological treatment? I feel sorry for parents who are stuck in these situations but there is rarely anything I can do for them.
The rest of the afternoon is pretty quiet. One client drops by to discuss his upcoming showcause during Friday open office hours and another doesn't show up for a 5 p.m. appointment but there's nothing too shocking about that.
As far as it goes, I don't think the federal prosecutor was trying to stifle dissent. I think he was being heavy-handed out of habit. It is seldom that anyone checks federal prosecutors other than themselves even if they go overboard because no one, and I mean absolutely no one, can afford to put things in front of a judge or jury in the federal system. It's just plain stupid in most every case to go to trial when the mandatory minimum on four charges carries 40 years and a plea would probably get it down under 10 - maybe as low as 5. About the only time I've seen anything federal end up at trial is if the feds dip into something so minor that they really shouldn't be messing with it or the Defendant is being really, really stubborn (guilt or innocence no longer plays a role when the scales are so unbalanced and judges are relegated to clerkdom for the federal prosecutors). The prosecutor was probably really surprised when he stepped over the line this time and somebody hit him on the nose with a rolled up newspaper. There remain two questions. First, will he back off for a while, wait for the political furor dies down and then proceed? Second, would a court reign him in from what appears to be a fishing expedition? The facts as explained in Volokh aren't the same as in the NYTimes but then again (as I vaguely remember from long ago science and economics courses) correlation does not mean causation. There needs to be something more before you start issuing subpoenas - you can't get there by if's and assumptions.
I understand the father's grief and his desire to lash out at someone but cooler heads need to prevail. Almost everyone who has fines imposed falls behind in paying them. Usually this is because they just don't have the ability to pay the fines. Not paying fines is not an indicator that someone is going to do something as depraved as it appears this man did.
A police officer is fired and found guilty of assault and battery because he tackled a man who he had been chasing - after the guy stopped.
The miracle of it is that we don't have more police act in this manner. It has got to be tough keeping yourself in check when you chase some guy over a distance and then catch up to him with your adreneline still pumping. Cudos to the officers who do.
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WordPerfect v. Word
Years ago I typed a wordprocessing program into my Commodore 64 and saved on my trusty, lightning fast 1541 (what an amazing improvement over tape). Along with an ahead-of-its-time dot matrix printer which emulated typeset Thus began my use of wordprocessing. When I switched from my C-64 to a PC (an evil day) I messed around with a number of wordprocessors before settling on WordPerfect. When Word entered the market I got it free on at least one computer and tried it but it was a far inferior product so I let it be.
A month or so ago I looked around my office to find the CD for Wordperfect in order to install it on a computer. It had disappeared. Being an enterprising sort I got on the internet looking for new wordprocessors and found AbiWord and OpenOffice.org. Both worked fairly well but neither would convert my old .wpd files. So I went out looking for the newest version of WordPerfect and could not find one at any of the local electronic or software stores. A little taken aback, I looked around and saw scads of Word packages for sale. I had been thinking of switching to Word anyway because everyone else has and no matter how many times I try to get people to use .rtf they just won't so there are always conversion problems when I get a document from someone else. Anyway, it's been years, Microsoft has surely made the interface better, fixed the old text manipulation problems, and developed a solid import/export feature for files from other wordprocessors. Surely . . .
NO, it has not. Today was the first day I tried to use it for anything significant and I swear the old wordprocessor I had for my C-64 was better than this cruddy wordprocessor. The pull down tables are still counterintuitive. Annoying lines pop up under all sorts of text as I write, indicating that I am doing something wrong and I cannot figure out what the program is upset about. The cut and paste feature is terrible; it keeps making me cut more than I intend to. This is a problem I remember from years ago in the first versions - there is no excuse for it still being in the program. The conversion of .wpd documents suuuucks. It is far worse than the conversions WordPerfect does of Word docs. Even when I go through the trouble to save my .wpd documents in .rtf and then import them into Word there tend to be some formatting errors. When I don't convert to .rtf first (usually because of graphics which .rtf loses) the documents come out terribly. The words are all there and some of the formatting sticks but the graphics come out green and purple. I should have known better. I think I'm going to have to make a trip to the CompUsa on the other side of Richmond because it was where I bought my last WordPerfect and if anybody has the program it should.
For the life of me I don't know why everybody has switched to this sub-standard program (other than Microsoft's exercise of monopolistic powers to muscle superior products out of the way). If you are starting out I suggest that you go get OpenOffice.org's program for free. It'll make your life easier as everyone is using documents saved in .doc format now and the program seems to actually be better than Word. As for me, I suspect I'll stay with Wordperfect until the company is finally driven under.
Bryan Gates, over at I respectfully dissent, lays out how the North Carolina system works and suggests a solution which I suspect would lead to drastic pay raises for all of us doing criminal work.
John Hays, writes to suggest that perhaps a strike would be in order much as has occurred in this article. In Virginia criminal law circles this has been suggested more than once. However, I believe such an action would fail for several reasons. There is no centralized criminal defense organization powerful enough to pull it off, the Legislature could care less if the courts are closed for a day, well connected small, local firms would never risk their position in the eyes of the judges by allowing their attorneys to do something like this, and those of us that are single practitioners doing criminal law and relying on court appointed work to keep the doors open are even less in a position to risk it. I don't have a war chest. If I skip court for a day when I have 2 or 3 cases scheduled it hurts me in the near term because I have to keep churning in order to pay the bills - in the long term it could be an absolute disaster as the judges stop giving me cases and assign them to lawyers they can trust to come to court.
There is a story which has floated around among Defense attorneys for some time now - I have no idea whether it is apocryphal or based in reality. A few years back a criminal defense lawyer challenged the constitutionality of Virginia's caps as part of his defense in some criminal matter. This agitated a local judge so much that shortly thereafter, during pretrials (official judicial notification of charges & assignment of lawyers), he looked down from his bench and pointedly asked the attorneys sitting there waiting to be appointed to indigent defendants if anyone had problems with the fees paid to court appointed attorneys because he wouldn't want to assign cases to people who didn't think they would get paid enough for their work. Of course, not a single one of the attorneys said a word because they all knew it would preclude them from ever getting court appointed work again.
A recent motion filed by yours truly (All names changed):
Defendant's Brief for Motion to Suppress
(A) Facts: Ms. Smith was pulled over by Officer Jones on suspicion of driving under the influence (Transcript page 5 line 21-21; hereinafter 5:21-22). Once pulled over, Ms. Smith and a passenger were required to exit the car by another police officer (6:7 - "Officer Friendly had them exit the vehicle"). Officer Jones noticed nothing unusual about Ms. Smith and did not smell the odor of alcohol (9:17-22). Officer Jones did not perform any field sobriety tests on Ms. Smith (8:8-10).
While running Ms. Smith's driver's information through DMV, Officer Jones brought her dog forward and had it check Ms. Smith, the truck, and the passenger (6:15-19). The dog reacted to Ms. Smith in a manner which Officer Jones, relying on her training and experience, interpreted as a reaction to a woman menstruating (6:20-7:5 & 10:19-25). The dog did not alert to the truck (7:12-14). The dog alerted to the passenger (7:10-12) but when searched the passenger had nothing illicit on his person (7:15-20). The passenger stated that "he had been around somebody smoking marijuana earlier during the day" (7:20-21). The officers then searched the truck and found contraband (8:16-20). Officer Jones then approached Ms. Smith and told her that she was to be searched and if she had anything on her person to hand it over prior (9:1-5). Ms Smith handed over contraband from her pocket and gave information leading to discovery of further contraband (9:6-10).
(B) Burden: At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving the challenged action did not violate the defendant's constitutional rights. Russell v. Commonwealth, 33 Va.App. 604 (2000)(citing Simmons v. Commonwealth, 238 Va. 200, (1989).)
(C) Defendant was seized: Initially, the seizure of Ms. Smith by Officer Jones in order to investigate a possible DUI was a valid investigatory stop. Arguably, when the officers required Ms. Smith to exit her vehicle it may have been out of concern for officer safety. The officer recognized that Ms. Smith was not drunk and therefore did not perform a single sobriety test. Thereafter, the only valid reason the officers had to hold Ms. Smith was to check her license pursuant to Va. Code sec. 46.2-104. Clearly, "the exercise of police power pursuant to Code § 46.2-104, the act of requiring a person who has been operating a motor vehicle upon the public highways to produce an operator's license, is a restraint upon the individual's freedom of movement and constitutes a seizure of the person.". Brown v. Commonwealth, 17 Va. App. 694, 697 (1994); see also Piggot v. Commonwealth, 34 Va.App. 45, 49 (2000)(by taking a person's identification an officer implicitly commands that person to stay).
Even had the officer returned Ms. Smith's driver's license - a fact not in evidence - no reasonable person would feel free to leave an encounter wherein two officers and a police dog were present, she was required to leave her vehicle, she was never told she could leave, the officers brought a dog forward to scan her for drugs, the officers scanned and physically searched a passenger from her truck for drugs, and the officers searched her truck without so much as a by-your-leave. "Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave." Harris v. Commonwealth, 266 Va. 28, 32 (2003) see also Reittinger v. Commonwealth, 260 Va. 232 (2000)(even if officer tells driver he is free to leave, a reasonable person would not believe he is free to leave in the presence of two officers and one requests to search his vehicle).
It is clear that at no time prior to her arrest was Ms. Smith involved in a consensual encounter with the officers.
(D) Violations of the Fourth Amendment to the Federal Constitution:
(1) Holding the Defendant longer than necessary to complete purpose of initial stop and a brief check of papers.
Once the justification for the stop evaporates a search of either the vehicle or the body is not justified. Thompson v. Commonwealth, 16 Va. App. 478 (1993). Additionally: "When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Any further detention for questioning is beyond the scope of the Terry stop and therefore illegal unless the officer has a reasonable suspicion of a serious crime." U.S. v. Rusher, 966 F.2d 868, 876 (4th Cir. 1992)(citing Florida v. Royer, 460 U.S. 491 (1983), United States v. Brignoni- Ponce, 422 U.S. 873(1975), & United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)).
Once Officer Jones realized there was nothing wrong with Ms. Smith, she could only hold Ms. Smith for the very short time necessary to check her license and registration. Once the papers were presented continued possession of the papers to undertake a radio check of their validity is an unconstitutional seizure of the driver unless there is something facially wrong with the papers leading to reasonable suspicion requiring such a check. Richmond v. Commonwealth, 22 Va.App. 257 (1996).
(2) Holding the Defendant in order to use a dog to check her for drugs.
Even were the continued seizure of Ms. Smith during a suspicionless radio check of her papers constitutional, it is common knowledge that officers carry portable radios for these checks ("While a check is being run - - and of course as we know, our officers have the radios right there with them and they can do that right outside the car." (20:19-21 - Deputy Commonwealth Attorney Burger)). There is no evidence that there was any problem causing a delay in what otherwise should have been a very short radio call to verify the veracity of Ms. Smith's paperwork.
Without any indication of possession of drugs, at this point the officer brought a dog forward to perform a search of Ms. Smith, her truck, and the passenger. This clearly extends the stop beyond that which is necessary to conduct a radio check of Ms. Smith's license and registration. It turns the encounter into a seizure for the purpose of searching the person of Ms. Smith and her passenger as well as her vehicle. It is clear that detaining someone without reasonable suspicion for the purpose of searching their person with a drug dog is unconstitutional. United States v. Foreman, 269 F.Supp.2d 683, 687 (E.D.Va. 2003)(even if a dog sniff is not a search, holding a person for a sniff without reasonable suspicion is an unconstitutional seizure); see also Horton v. Gross Creek Independent School District, 690 F.2d 470 (5th Cir 1982)(The Fourth Amendment applies with its fullest vigor against any intrusion on the human body and a dog sniff is unconstitutional "when there is no individualized suspicion"); & United States v. Kelly, 302 F.3d 291 (5th Cir 2002)(dog sniff of a person, as opposed to an object, is a search); B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir 1999)(adopting the 5th Circuit's rationale in holding that dog sniffs of a person are searches).
(3) Searching the vehicle without probable cause.
Even were continued seizure to accommodate a scan by a dog constitutional, the results of the scan do not provide the probable cause required to give the officers the carte blanche to search the passenger compartment allowed by New York v. Belton, 453 U.S. 454 (1981). In fact, the dog had given the truck a pass, not indicating in any way the presence of drugs. No probable cause had been developed as to Ms. Smith; in the officer's professional judgement the dog had not indicated drugs on her person. No probable cause had been developed in the person of the passenger; a search revealed no drugs on his person. While the requirements for a warrantless search of a person's vehicle have been whittled down, the officers must still at least have probable cause. Maryland v. Dyson, 527 U.S. 465 (1999). The police officers had direct knowledge of an indication from the dog that no drugs were present in the truck. The officers didn't state that they smelled an odor from drug use or saw any suspicious items in plain view at any time during the stop. They had previously found no drugs in the scan of Ms. Smith and the actual physical search of the passenger. There were no facts in the officers' possession which could possibly have risen above mere suspicion that "maybe they were smoking [marijuana] in the vehicle" (21: 10-11 - Mr. [Burger]). This guesswork clearly falls far short of probable cause.
The pay for court-appointed criminal lawyers in Virginia has risen by $12 a case in the past 32 years. And Virginia is one of only two states with a mandatory cap on fees paid to defense attorneys -- and those fees are the lowest in the nation.
. . . . .
The report cites the "crushing caseloads" of public defenders, who often have little or no training before being assigned hundreds of criminal cases. And it attacks the state's Public Defender Commission for not fighting more vigorously for funds, equipment and training for its offices across the state, calling its efforts "timid."
"Indeed, it seems the Commission has taken pride in the repeated battle cry that it can provide representation to indigent defendants cheaper than court-appointed counsel," the report states. And with Virginia's court-appointed lawyers already the most poorly paid, "how effectively can either public defenders or court-appointed attorneys represent their clients?" the report asks.
. . . . .
Better pay for court-appointed lawyers would allow them to spend more time preparing for cases, defense advocates say, and discourage them from urging their clients to plead guilty. Lawyers handling felonies with a potential prison sentence of 20 years or more, including most murders, are paid a maximum of $1,096. Those representing defendants charged with crimes that carry sentences of fewer than 20 years have a cap of $395. Misdemeanors and juvenile cases are capped at $112. The average pay to a court-appointed Virginia lawyer is $245.
And you know what this report will accomplish? Absolutely nothing. As the article recognizes, reports like this have been published periodically for 30 years in Virginia and we've seen one raise in the fees paid defense counsel The Legislature even refuses to fully fund that - the statute states I get $120 for misdemeanors but the Legislature only funds $112 (same situation exists for felonies). The only chance that this changes is if the courts step in. Even then I think it will have to be some sort of intervention by the federal courts. I still remember sitting at a CLE as our former Chief Justice said in a lecture that the pay may be low but it doesn't seem to have any effect on the representation he sees before his Court (I hope nobody needs an explanation as to the fact that the problem occurs at a much lower level).
Most of my income comes from court appointed work; theoretically, this is paid at $90 a hour but the caps listed above usually make the pay rate irrelevant. The fees definitely need to be fixed because the caps are at the very least half of what they should be. Because of the pay scale I do have to take a certain amount of cases to make ends meet. However, I have never urged someone to plead guilty just so I can move on to the next case - that insinuation is just plain insulting. In fact, I have gone to trial several times when I knew the trial would lead to a significant loss of money. Anytime someone wants a jury and he's charged with less that three felonies I know that a large portion of my time will be gratis. If the trial is complex I know that a lot of time will be gratis even if there are 5 or 6 felonies. Other attorneys do the same thing. Yesterday I was speaking to a fellow attorney who has put already put 20 hours into a non-capital murder trial (capped at $1096) and she hasn't even had the preliminary hearing yet.
What are the effects of these low pay scales? In my case it means I don't have a secretary or an accountant. I spend a lot of time doing by rote paperwork (typical discovery motions, etc.) and trying to keep on top of the business. I also spend large amounts of time in court or at jails. This means that my clients don't get any kind of handholding. I contact them when there is some significant occurrence in their case. They can come by and see me on any Friday during my open office hours (2-5pm). Other than that there isn't a whole lot of contact. I'm doing the necessary legal work in their case; I just don't tell them over and over that I am.
The problem with the primary source for this article's argument is that he has shown that local law enforcement can handle the problem: "L.A. recently made headlines by cutting its murder rate by 22 percent from the previous year." The claim that cracking down is moving street gangs to other nearby locales is not easily believable. Street gangs are almost always tied to a territory where the members live and are not all that mobile.
If this guy had waited 5 more minutes - until the delivery guy left - he would have gotten away with shipping himself via cargo jet to his parents' house. Now he has to pay more than a first class ticket and he's going to be locked in his house for four months (which should feel absolutely spacious).
This might seem unlikely at a place like W&L, which the Princeton Review has dubbed the campus most nostalgic for Ronald Reagan, a place where alternative lifestyles are not an alternative.
That is absolutely not true. Alternative lifestyles were common when I was there. Not everybody was a Conservative - a good number were Libertarians. Not every window had the Battle Flag - some had the Stars and Bars. Not all thought Reagan was the best president - some liked Nixon or Bush the Elder (and some were way out there and liked Teddy Roosevelt). Not everybody joined the Federalist Society - well, okay, that was mainly because it was redundant. Not everybody joined a fraternity - they didn't rush law students. See, there was plenty of diversity while I was there.
We don't get paid enough, take too many cases, don't put enough work into our cases, and cannot get proper expert support. The offered solution? "[A]n oversight commission for indigent defense that would establish standards for training, experience and caseloads." Translation: A group of people with agendas who will try to set unrealistic requirements.
Look, if you want to fix the system there are three changes which would fix most current problems. First, increase the fee cap by at least 100%. Second, make the prosecution give the Defense attorney the police report. Third, make the prosecution give the Defense counsel an exact xerox copy of his client's record. This would allow Defense counsel (1) to take fewer cases and still be able to pay his bills, (2) to size up the case quickly and better advise his client, and (3) to be able to make an accurate assessment of what the sentencing guidelines range might be (it's amazing but 90% of clients cannot tell you what is on their records). This would make the system work far better than it does currently.
Much to their credit, many prosecutors already do the second and third steps but some jurisdictions continue to play games. Why? Because they can.
Making the DUI laws even tougher to pander to the prohibitionists is not going stop drunk driving. Listen closely and repeat after me: TAKING PEOPLE'S LICENSES DOES NOT STOP THEM FROM DRIVING BECAUSE THEY HAVE NO OTHER WAY OF GETTING TO WORK TO SUPPORT THEIR FAMILIES. ALL IT DOES IS INSURE AN ENDLESS STREAM OF HARDWORKING PEOPLE WHO ARE IN AND OUT OF JAIL AND PUT FURTHER AND FURTHER INTO DEBT TO THE COURT SYSTEM.
And now they are trying to take a person's license for life? For life? And what a joy it will be standing in court 12 years after my client's last conviction for anything watching him get sentenced to a year in jail because he had a broken taillight as he drove to pick up his wife when her car broke down at 2 a.m. Don't think it will happen? I know it will; I still get to stand in court next to guys who are under the old habitual offender laws and watch this sort of thing happen (although, mercifully, that old draconian law is slowly weeding itself out of the system).
I understand why it is hard for legislators to vote against these kinds of bills. But sometime, somehow the madness of taking peoples' licenses in Virginia for everything under the sun has got to stop
Now that's interesting. I know, in Virginia at least, if my client hands me incriminating evidence I cannot keep it (generally interpreted as handing the knife back to client and telling him he's not paying me enough to go to jail myself). I suspect the same general rule would apply if my investigator found something and brought it to me (and shortly thereafter he would lose his job - he should have left it where it was and told me about it).
However, if the evidence is exculpatory I don't believe I have a duty to disclose. So the prosecutor's nightmare in a case like this is that I have a knife with the victim's blood and the butler's fingerprints or even worse a security tape of the butler doing the deed. If he cannot find this out before trial he is going to be in for an awful shock. Of course, it's almost impossible to defend yourself without revealing what the piece of evidence is, so prosecutors can bring motions like this in order to fish some.
Caveat: I do not know the law of evidence in California. For all I know it requires full disclosure of physical evidence by both parties.
Crescat Sententia and Blog or not? are discussing whether a Libertarian Presidential candidate's proposal to keep prisoners confined to bed for long periods of time is unconstitutional. The proposition is an interesting one but I think not a practical one. The only way I can think of to keep them in bed for that time is chains and I'm pretty sure that would be unconstitutional. Anyway, how do they use the restroom (don't tell me bed pans because I'm sure we can all visualize what numerous prisoners who want to get out of bed will do instead of using one)?
As to the constitutionality, while I haven't heard of anyone enforcing bedtime like this, I know that a lot of prisons do the functional equivilent by feeding unruly prisoners "prison loaf." It's a particularly bland mix (one recipe here) which when fed to a prisoner over a period of time takes all the energy out of them (or so I've been told by guards). And, to my knowledge, no one has suggested it is unconstitutional.
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.