Of the friends and colleagues in my immediate circle I think I am the most proficient with computers. It's a scary thought when you actually consider that I'm not much more than a fairly proficient user with a smattering of html knowledge.
Anyway, I am a big believer in technology as a great tool for the office. I thought I'd go through some of the various software and technology that I find useful.
Word Processors: Okay, Wordperfect and Lotus WordPro are far better word processors than Microsoft Word. Word is, simply put, a bad program. Still, it is the industry standard [snide anti-MS comment deleted] and most legal offices have capitulated to it. With this in mind I really cannot recommend that anyone starting out go with the two better programs. Yet, all is not lost. Rather spending far too much money for a weak program you can get far better programs online for free. OpenOffice.org provides a far better program and it is absolutely free. It's better laid out, it's not counter-intuitive like Word, and it comes with a suite of companion office programs which all use MS format (for those of you who might think that a major boon). When you save documents it wants to use its own format but it is easy to save in .doc and it's not a conversion but a document which works perfectly in MS products. For the life of me, I don't know why anybody with access to the web would ever use Word when they can download this for free. BTW another, even simpler, option is AbiWord.
E-Mail: First, let me say that if any of you are using the mail programs that come bundled with your web browser, STOP!! Stop right now. Why are you doing this to yourself? These programs pull down and erase the mail from your server so that you can only see them on the computer you first see them on. They also directly expose your computer to all sorts of viruses which are actually pulled down into the computer with the e-mail. They also leave your saved e-mail addresses available for the virus to duplicate and mail itself out to everyone you have contact with (friends, clients, etc.). This is what happens when you get email from a buddy and your (hopefully up to date) virus software screams "infected" but he swears he never sent it.
Second, let me thank the kind people over at Google for offering their massive storage 1 gigabyte e-mail service. I don't plan on using it because it doesn't have all the bells and whistles but because of them Yahoo has raised the space in its free accounts to 100 megabytes. In case you are not, you should start using Yahoo immediately. Go to Yahoo and set up an account; then download Yahoo Messenger and sign in under that account name. Turn on the Bulk Mail option in Yahoo mail and it will catch 98% of spam; I think maybe 10 a day get through on mine. You'll have to scan the bulk mail every so often to make sure some things aren't getting sidetracked but you should do that no matter what your spam catcher is. The advantages to the Yahoo account are numerous. (1) The storage space is so large that unless you are getting a ton of attachments every day you should not have to do anything but read and store your messages for a loooonnng time. (2) Your messages are, and remain, available anywhere you can find a computer with internet access. So, if you are in the courthouse without your cell phone you can usually pop into the law library and check to see if anyone has left you a message. Yahoo mail also works with most modern cell phones so you can check your mail when you are away from the office. (3) The virus is on Yahoo's computer, not yours, and Yahoo automatically scans any attachment before you download it to make sure it is clean; the virus cannot get the saved e-mail addresses and spam your clients either. (4) Yahoo messenger will notify you (by sound and pop-up) whenever a message comes in. It is the best way to go.
Internet Research: If it hadn't been for the web, I'd have never gotten off the ground. Aggregaters, such as FindLaw and AllLaw are useful in getting you to the many sites wherein you can find the cases and statutes you need. FindLaw is still the best among these but things seem a little lax over there since West bought them out. My searches do not yield as much useful information (maybe I'm looking for harder stuff) and little problems have crept in (i.e. The link to the Virginia constitution has been broken for a long time now even though you can link to it here).
As far as pay sites, it is hard to beat West (and probably Lexis) but my personal favorite is VersusLaw. For less than $15 a month you can get all of the appellate decisions from all the State and Federal systems. Now, there are no headnotes so you actually have to read and think for yourself but I'm not a big fan of headnotes anyway (having seen too many which say one thing while the case actually seems to say the opposite). One thing I really, really, really like about VersusLaw is the fact that it numbers the paragraphs in the opinion. For a trial lawyer this is wonderful. As you stand there in front of Judge Smith with a 40 page decision you can point him to exactly the paragraph which supports your position. It is much easier than the painful back and forths we've all seen where the judge and the attorneys try to figure out where exactly certain language is. The only problem is that VersusLaw only goes back to the 1930's. This can cause some difficulties in Virginia where there is something of a mania for citing cases from the beginning of the Commonwealth, the founding of the Republic, and maybe even back to Blackstone or the Magna Carta (not that these cites often prove very relevant to the actual matter at hand).
Computers: I'm of the opinion that you should probably be able to get away with one portable computer (per person) to run your law office. This explains why I have 2 desktops at my office, a portable, a desktop at home (strictly for professional use of course) and a PDA powerful enough to be a computer by itself.
I've tried various configurations of the computer equipment I have. I've tried putting all my computers on a wireless network and that worked for a while but my internet provider would only allow one of my computers at a time to access the internet with my DSL so that turned out to be pretty useless. Actually, it was useful for a while as I kept all my legal docs on a single computer and accessed from every computer, thereby ensuring that I wasn't always pulling up a number of different variants every time I pulled up a model file from a different computer. However, when my primary computer died a while back I just bought a USB thumb drive which would fit in all my computers and never set the intranet back up.
USB thumb drives are a very convenient item. The one I have has 512 MB of memory and has the original of every form I use. Whenever I develop a new form it goes on there as well. It goes with me everywhere. If there's a computer nearby I can get an order or motion together in just a couple minutes. Not a necessity, just a nicety.
While most guys are off drooling over Corvettes, I am that geek who's a sucker for new computers. However, there really isn't all that much need for all the bells and whistles. Most of us could get away with a middle of the line computer in order to do wordprocessing, bookkeeping, and internet searching. I'd suggest that everyone should probably still have 3.5" drive and a writable CD drive. In reality you shouldn't need either; anyone else with a computer should be able to get your files more quickly thru e-mail. However, some people are stuck in old-fashioned mode and want to have that disk in hand. In order to back up your important files, I recommend buying an external hard drive; plug it into your computer's USB port one day a week, download the files, and store it somewhere else. External hard drives have become amazingly compact. If it wasn't for the cords my 40 gigabyte external would fit easily in a pocket.
The portable computer is probably the best way to go for a law office. It takes up less space and you can take it with you so you can actually work somewhere other than your office. The 9-10 p.m. nights at the office can fade into obscurity because you can take some work home with you. It can also travel with you to a law library if you intend to do some work there. Don't get suckered into one which is a big clamshell; sure they have bigger screens but that doesn't really mean much while you are using a word processor or using the internet for research purposes. On the other hand, don't buy one of tiny ones unless you have very small hands or you can type using just one. Some of them are about the size of 2-3 of my PDA which means they are small, light, easily carried but how anyone could type on that is beyond me.
If you have a decent PDA and a desktop don't bother getting a portable computer. Buy a wordprocessor for the PDA and an expandable keyboard. Since the day I did this my portable has mostly sat gathering dust. The only thing a PDA cannot do is hook into the internet over the phone like a computer. It may even be able to do that somewhat if there is wi-fi coverage or if your phone has the ability to hook to your PDA and the internet or if your PDA and phone are a single unit.
PDA's: My first PDA was some old model of which I can't even remember the brand. My second was a Palm and I have been through m100, i705, Tungsten C, Tungsten T3, and back to Tungsten C. I use them hard, keep them in my pocket with me at all times, and have been impressed by them all. I don't have one of the phone models because no court around here will allow me to bring a phone in and my calendar is in the PDA. Most of the functions which I use have been available from the very beginning. I don't remember the exact program but there was some sort of word processor on my old m100. The major difference on the new models is that the wordprocessor is more advanced, I can leave copies of most of the files I use on the PDA, and there is a database program I use. There are lots of gimmicks but I don't use most of them.
I'm only going to discuss the two Tungstens here because they are the ones you are likely to still find. The Tungsten C has a nice little thumb keypad which is convenient for inputting small things (if you are going for more than a sentence or two you might want to hook up the expandable keyboard). Functionally, that is its one major advantage. It also has wi-fi but that really isn't a function which finds much use out in the hinterlands where I usually find myself; I end up in jails so far out that my cell phone won't work – wifi ain't even a dream out there. The best part is that it is sturdy and that is a serious requirement when it sits in my pocket all day every day.
The Tungsten T3 has all sorts of spiffy things. The screen widens out which is nice when you are showing people pictures you have transferred to the PDA or are using it in conjunction with a keyboard to be able to see more of the document. However, most of the time that space is either taken by a virtual keyboard or a place to write script so that it will appear above. Using the stylus in order to hunt and peck just doesn't work well for anything more than a couple words. The writing works better except for two things. First, it cannot keep up. If you write too quickly it screws up every time. Second, Palm screwed up its letter system. Instead of keeping everything a one stroke per letter alphabet it made the T's and K's two strokes. This made them more as one would write them in the real world but it also guaranteed that at least a third of these letters would come out wrong; it is very annoying. There were, however, some benefits to buying this PDA – it came with full copies of the books The Wizard of Oz and The Last of the Mohicans. So I read the entirety of The Wizard of Oz while I was sitting around in courtrooms and jails waiting (BTW, it is very different from the movie). I didn't get too far into Mohicans before I gave up on this model.
Why, you ask did I give up on the T3? Well, I bought it as a compromise when I broke my C doing something stupid (no, I will not tell the story) and I could not find another at any local electronic store. It worked well enough and everybody is impressed by the sliding action. The thing that resigned it to the scrap heap was the fact that it kept losing its charge and every bit of data. This is very annoying if you have forgot to sync your PDA last night; most PDA's hold a charge in reserve so that your data is saved when the PDA is recharged. As best I can figure it, while riding in my pocket the button on the side which triggered the voice recording and playback system would get pushed in and drain all the power. It is a serious design flaw. One of the reasons I was convinced to compromise and buy the T3 was this recording system. I reasoned that since it was supposed to have a hour of recording capability it could replace my tape recorder. The only problem was that the recorder would shut off after three minutes when the PDA automatically shut down to save power. As well the button on the left side was badly placed and very sensitive so that it would get hit and switch you out of whatever you were doing into the voice recorder or turn the PDA on by accident. After losing all my newly entered data about 4 times I knew that something had to give so I ponied up the money to buy another C.
The Future: If anybody out there wants to be on my good side forever and a day, buy me the Electrovaya Scribbler SC2010 Windows XP Tablet. It's the only Tablet I've seen with the battery power to actually make it a viable system, something I could take to court with me every day bring back home or to my office at night plug it in so that it recharges and then take it back out for another day. My vision for this is to scan all files for my case (warrants, etc.) into it, takes notes on it, and keep everyone's file in it completely electronically. Of course, it wouldn't work completely. Residual case files would have to be maintained for everything which must be signed in State court. And the federal courts are so technophobic that they won't even let me bring in my PDA. Heck, federal courts are so technophobic that I'm surprised they let us bring in pens and paper. They could provide us with quills and inkwells at our tables so we could sign the parchment they give us. After all, the most dangerous item which goes into the hands of my clients while they are in the courtroom is the pen; most people don't think about it but a pen is a well constructed, dangerous puncture weapon (that's why prisoners only get those specially made flimsy ones while incarcerated).
Okay back to the Scribbler. I want one and I want one badly but ever time I get enough expendable money stored away something comes up and I just cannot place this at the top of my list of priorities. Oh well, I guess I'll just have to keep using paper (or find someone rich to marry).
19 June 2004
18 June 2004
Kobe, DNA and a Judge's Suggestion
After results from the State lab were contradicted by results from the Defense's lab tests the prosecution sent the DNA to Virginia for testing. However:
[It]was halted when state District Judge Terry Ruckriegle ordered prosecutors to explain they weren't letting a defense expert observe the tests, as the judge had ordered. Prosecutors said last week they thought the judge had made only a suggestion, not an order, and that the lab has policies against outsiders observing tests.The question is whether the prosecution really screwed up that badly or whether it was trying to pull a fast one.
Stealing from the Watchers
If you are going to do a show focused on catching people in the act of breaking the law you probably should take care that you don't get your stuff stolen.
17 June 2004
Virginia Court of Appeals 06/15: Rules > Constitution
West v. Commonwealth - Subject: Double Jeopardy and the ends of justice exception under Va Supreme Court Rule 5A:18
(1) If the prosecutor mentions double jeopardy concerns in his argument against the Defense's motion to strike the evidence and the only time the Defense mentions double jeopardy concerns is in the sentencing hearing when he states that the prosecution must elect between the two charges it is not enough to preserve the double jeopardy argument for an appeal.
(2) The "ends of justice" exception can be invoked when some crucial procedures are not followed by the trial court, i.e. jury instructions without the proper elements of the alleged crime.
However, the fact that an error is a clear, substantial, material violation of the constitutional bar against double jeopardy is not enough to qualify for the ends of justice exception. This argument is labeled "tautological."
Comment: Yeah, I had to look up tautological to make sure I had the right definition. I understood it to mean "self-sustaining only under its own internal logic." I think that's basically correct but I checked anyway. Webster online defines it as "true by virtue of its logical form alone" and Webster's 3d New International defines it as "true purely by the meanings of component terms."
So, if I'm understanding the term correctly the court says that it is only internally logical to the petitioner's argument that a clear, substantial, material violation of the constitution's bar against double jeopardy is an unjust error. When viewed outside the petitioner's argument there is no unjust error even if the constitutional right against double jeopardy has been violated (a number of cases are cited). The Rules of the Supreme Court of Virginia trump the United States Constitution.
(1) If the prosecutor mentions double jeopardy concerns in his argument against the Defense's motion to strike the evidence and the only time the Defense mentions double jeopardy concerns is in the sentencing hearing when he states that the prosecution must elect between the two charges it is not enough to preserve the double jeopardy argument for an appeal.
(2) The "ends of justice" exception can be invoked when some crucial procedures are not followed by the trial court, i.e. jury instructions without the proper elements of the alleged crime.
However, the fact that an error is a clear, substantial, material violation of the constitutional bar against double jeopardy is not enough to qualify for the ends of justice exception. This argument is labeled "tautological."
Comment: Yeah, I had to look up tautological to make sure I had the right definition. I understood it to mean "self-sustaining only under its own internal logic." I think that's basically correct but I checked anyway. Webster online defines it as "true by virtue of its logical form alone" and Webster's 3d New International defines it as "true purely by the meanings of component terms."
So, if I'm understanding the term correctly the court says that it is only internally logical to the petitioner's argument that a clear, substantial, material violation of the constitution's bar against double jeopardy is an unjust error. When viewed outside the petitioner's argument there is no unjust error even if the constitutional right against double jeopardy has been violated (a number of cases are cited). The Rules of the Supreme Court of Virginia trump the United States Constitution.
16 June 2004
Yankee Lawyer Southern Justice
This has been bouncing around in my head since I watched "My Cousin Vinny" a few days back:
When I first came to practice criminal law I was surprised at how quickly trials go in Virginia. Most felonies are completely tried within a day. Major trials seldom take more than a few days. There was a story which floated around among the old timers which was used to demonstrate the difference between a trial in Yankeedom and a Virginia trial.
The story starts with a bunch of folks from up North with vowels at the ends of their names coming down to this area and starting various restaurants serving pizza and various types of pasta involved foods. Figuring these people for trouble, local law enforcement cracked the whip and a number of people ended up in court.
A lawyer from New York City comes down here pro hoc vice to handle one of the gentlemen's jury trial.
The lawyer had been under the misunderstanding that a judge in Virginia would actually allow him individualized voir dire.
Is the story true? Who knows. Did local law enforcement stomp out those establishments? Well, I've not had any problem finding a place nearby where pasta is served and the folks running the place always seem to speak some foreign tongue.
When I first came to practice criminal law I was surprised at how quickly trials go in Virginia. Most felonies are completely tried within a day. Major trials seldom take more than a few days. There was a story which floated around among the old timers which was used to demonstrate the difference between a trial in Yankeedom and a Virginia trial.
The story starts with a bunch of folks from up North with vowels at the ends of their names coming down to this area and starting various restaurants serving pizza and various types of pasta involved foods. Figuring these people for trouble, local law enforcement cracked the whip and a number of people ended up in court.
A lawyer from New York City comes down here pro hoc vice to handle one of the gentlemen's jury trial.
Lawyer: Your honor, I don't think that jury selection should take any longer than two weeks.And the judge was right.
Judge: Counselor, this trial is going to conclude this afternoon.
The lawyer had been under the misunderstanding that a judge in Virginia would actually allow him individualized voir dire.
Is the story true? Who knows. Did local law enforcement stomp out those establishments? Well, I've not had any problem finding a place nearby where pasta is served and the folks running the place always seem to speak some foreign tongue.
15 June 2004
Lawyers on Strike
Lawyers doing indigent defense in Oregon went on strike because they were capped at $550 for most cases and $3,750 for homocides.
Hmmm . . .
What are we paid her in Virginia? Oh yeah, that's right: $395 per most felonies and $1096 for very serious felonies (homicide, aggravated malicious wounding, etc.)
Ah, who cares about the money? I can live off my trust fund. Whatdaya'mean I don't have a trust fund? You mean I actually have to work to pay my bills? Aw crud.
Hmmm . . .
What are we paid her in Virginia? Oh yeah, that's right: $395 per most felonies and $1096 for very serious felonies (homicide, aggravated malicious wounding, etc.)
Ah, who cares about the money? I can live off my trust fund. Whatdaya'mean I don't have a trust fund? You mean I actually have to work to pay my bills? Aw crud.
Virginia Court of Appeals 06/08 (part 2)
Washington v. Commonwealth - Subject: Can a Defendant be found guilty of transporting drugs into the Commonwealth when he only picks them up at their destination?
Accepting delivery of an item after it had been delivered through the mail is part of its transportation. When a person accepts a mailed item he is constructively present at its mailing. Therefore, he can be a principal in the second degree of any crime committed in the mailing of the item.
Comment: This seems a stretch to me. If the package had actually been delivered to the Defendant personally at his apartment or place of work I think the Court’s reasoning works. However, this package had been delivered to a private actor (Mail Boxes etc.). At that point it ceased to travel interstate and the pickup by another private actor would be an intrastate activity.
Edmonds v. Commonwealth - Subject: What is necessary to establish that a judge took judicial notice of a matter?
If, in a motion to strike the evidence, the Defense points out that a fact has not been proven and that the judge has not taken judicial notice of it, the judge’s denial of the motion to strike does not establish that the judge has taken judicial notice of the fact.
Of Note: Judge McClanahan impressed the heck out of me by going back and actually looking at the warrants. Her concurrence points out that the scratched out dates on the warrant makes it impossible to determine exactly whether there was notice or not.
Comment: This is just a silly little error which could have easily been corrected. It wasn’t and Greg Sheldon is just too good an attorney for the prosecution to make errors like this and expect to get away with them.
Pearson v. Commonwealth - Subject: Justification for a DUI blood test.
If someone claims to have burped three times, each time restarting the 20 minutes waiting period for the DUI breath test an officer can conclude that the person is physically unable to take the breath test and arrange a blood test.
Emerson v. Commonwealth - Subject: Miranda and your client’s pants
Facts: Emerson is rousted from his sleep and removed from his apartment so that the apartment can be searched. He is standing outside in his skivies so the officer watching him asks him what clothes he would like. Emerson tells the officer he wants the clothes by his bed (you know, the ones with the drugs in them). One officer dumps the stuff out of the pockets and hands the clothes to the officer outside who asks Emerson, “Are these the clothes you wanted?” Emerson answers, “Yes.” The stuff from the pockets is searched and drugs are found.
The Defense argues that the above conversation violates Miranda. The Court concludes that the conversation was not meant to be interrogatory as to a crime and therefore did not violate Miranda.
Comment: Okay, I understand why the Defense would argue something like this but I am not sure why the issue still existed after trial. It was a one room apartment, the only person in it was Emerson, and the clothes were right next to the bed he was sleeping in. That pretty much establishes possession right there (at least in the courts wherein I practice). The prosecution could have just asked the judge to opine whether or not the statement “Yes” was the decisive factor or whether the decision would have been the same even if “Yes” were excluded.
Accepting delivery of an item after it had been delivered through the mail is part of its transportation. When a person accepts a mailed item he is constructively present at its mailing. Therefore, he can be a principal in the second degree of any crime committed in the mailing of the item.
Comment: This seems a stretch to me. If the package had actually been delivered to the Defendant personally at his apartment or place of work I think the Court’s reasoning works. However, this package had been delivered to a private actor (Mail Boxes etc.). At that point it ceased to travel interstate and the pickup by another private actor would be an intrastate activity.
Edmonds v. Commonwealth - Subject: What is necessary to establish that a judge took judicial notice of a matter?
If, in a motion to strike the evidence, the Defense points out that a fact has not been proven and that the judge has not taken judicial notice of it, the judge’s denial of the motion to strike does not establish that the judge has taken judicial notice of the fact.
Of Note: Judge McClanahan impressed the heck out of me by going back and actually looking at the warrants. Her concurrence points out that the scratched out dates on the warrant makes it impossible to determine exactly whether there was notice or not.
Comment: This is just a silly little error which could have easily been corrected. It wasn’t and Greg Sheldon is just too good an attorney for the prosecution to make errors like this and expect to get away with them.
Pearson v. Commonwealth - Subject: Justification for a DUI blood test.
If someone claims to have burped three times, each time restarting the 20 minutes waiting period for the DUI breath test an officer can conclude that the person is physically unable to take the breath test and arrange a blood test.
Emerson v. Commonwealth - Subject: Miranda and your client’s pants
Facts: Emerson is rousted from his sleep and removed from his apartment so that the apartment can be searched. He is standing outside in his skivies so the officer watching him asks him what clothes he would like. Emerson tells the officer he wants the clothes by his bed (you know, the ones with the drugs in them). One officer dumps the stuff out of the pockets and hands the clothes to the officer outside who asks Emerson, “Are these the clothes you wanted?” Emerson answers, “Yes.” The stuff from the pockets is searched and drugs are found.
The Defense argues that the above conversation violates Miranda. The Court concludes that the conversation was not meant to be interrogatory as to a crime and therefore did not violate Miranda.
Comment: Okay, I understand why the Defense would argue something like this but I am not sure why the issue still existed after trial. It was a one room apartment, the only person in it was Emerson, and the clothes were right next to the bed he was sleeping in. That pretty much establishes possession right there (at least in the courts wherein I practice). The prosecution could have just asked the judge to opine whether or not the statement “Yes” was the decisive factor or whether the decision would have been the same even if “Yes” were excluded.
14 June 2004
Virginia Court of Appeals 06/08
Hudgins v. Commonwealth (en banc) - Subject: The relationship between a Robbery and a Larceny
Both petit larceny and grand larceny are lesser included offenses in the offense of robbery. However, a court may not convict someone found not guilty of a robbery of grand larceny if the elements of the grand larceny are not alleged in the indictment.
After a finding of not guilty in a robbery prosecution, the prosecutor may not indict on grand larceny even though there are some different elements (in particular the necessity of alleging a sum taken for grand larceny) because both crimes require a finding of guilt on the lesser included crime of petit larceny.
Comment: While a proper result, the way this is laid out would seem to leave whether or not a jury will be offered the chance to convict of a lesser included grand larceny entirely in the hands of the prosecutor. If he wants to make sure that there is no real other option but to convict on the robbery charge he can artfully craft the indictment so that no instruction for a grand larceny can be offered by the Defense. Unless the judge would amend the indictment on the motion of the Defense. I've never actually tried that so I'm not sure if it is allowed under Virginia law.
Both petit larceny and grand larceny are lesser included offenses in the offense of robbery. However, a court may not convict someone found not guilty of a robbery of grand larceny if the elements of the grand larceny are not alleged in the indictment.
After a finding of not guilty in a robbery prosecution, the prosecutor may not indict on grand larceny even though there are some different elements (in particular the necessity of alleging a sum taken for grand larceny) because both crimes require a finding of guilt on the lesser included crime of petit larceny.
Comment: While a proper result, the way this is laid out would seem to leave whether or not a jury will be offered the chance to convict of a lesser included grand larceny entirely in the hands of the prosecutor. If he wants to make sure that there is no real other option but to convict on the robbery charge he can artfully craft the indictment so that no instruction for a grand larceny can be offered by the Defense. Unless the judge would amend the indictment on the motion of the Defense. I've never actually tried that so I'm not sure if it is allowed under Virginia law.
13 June 2004
A Friendly Judge
Once in a while I wish I could find more judges who were sympathetic to the plight of my clients. However, I'm not sure I'd want one to help my clients escape.
You know, the judge could have avoided all this if she had just found the Detective in contempt. That way the Defendant would have been arrested and the judge would have punished what she viewed as inappropriate behavior.
Link via The Legal Reader.
You know, the judge could have avoided all this if she had just found the Detective in contempt. That way the Defendant would have been arrested and the judge would have punished what she viewed as inappropriate behavior.
Link via The Legal Reader.
It's All in the Tie
I was watching “My Cousin Vinny” last night and it brought to mind this passage from Guilty: The Collapse of Criminal Justice by Harold Rothwax:
I had a funny incident some years ago with a lawyer, now deceased, named Joe D. Joe was what we called a Baxter Street lawyer. He practiced out of a little storefront behind the courthouse. And he looked the part—porcine and kind of greasy, with a slick toupee perched ceremoniously on top of his head. Now, Baxter Street lawyers aren't exactly the cream of the profession, but Joe was very bright and very realistic. He saw things clearly, and there was no nonsense about him. He did a good, workmanlike job.Lest any of you think that you should run out and buy this book I must recommend against it. I read this book many years ago when I was in law school and thought it quirky then. Having looked back through it after practicing for a few years, now I find it downright scary. One particularly disturbing passage:
One day Joe walked into my courtroom, prepared to do a voir dire, which is the questioning of prospective jurors. He was wearing a garish tie—a bright pattern of orange and lime green. It was a truly ugly tie. It could make you cringe, that tie. It fell halfway over his substantial belly, hanging like a whorehouse flag.
The first thing Joe did when he stood up to address the prospective jurors was to grab his tie and push it forward into their faces, booming, "See this tie? See this tie? How many of you don't like this tie?"
"Joe," I chastened him at sidebar, "in my view, that is not a proper question. It demeans the process. It makes it silly. It makes it like a circus. Whether that is your intent or not, it is not an appropriate question on voir dire. If you think people are not going to like your tie, wear a tie that you think they will like. If you have no questions on voir dire don't ask any. But this is not a proper question."
Joe responded very candidly. "Judge," he said, "you say it's not a proper question. I've been doing this for twenty years. I've appeared in every courtroom in this building and no other judge has ever stopped me. And you know why they don't stop me, Judge? Not because you're wrong. You're not wrong; you're absolutely right. They don't stop me because that's my only goddamn question. Okay? And they're so happy to have a short voir dire that they let me ask anything. Okay? Now, if that's not okay, I don't have any other questions. But don't blame me. Every judge in this building lets me do it except you."
I had to laugh. In his direct way, Joe told it like it was. And, of course, his purpose in asking about the tie was clear. He knew he wasn't Robert Redford. He wanted to get a feel for the way the jury responded to him.
p. 136-38.
Our entire system prior to a defendant going to trial is composed of a set of probability screens. Defendants don’t just show up in court on a whim, railroaded by the system. By the time a person reaches trial, he has been deemed “probably guilty” several times - by the grand jury and by the court in preliminary hearings.Rothwax, after sitting as a trial judge in New York for 25 years, does not understand probable cause. Probable cause is clearly less than probably guilty; probably guilty would be the preponderance of the evidence standard. To be fair, I don’t practice in New York. It’s possible that NY imposes a higher standard of proof prior to trial than everywhere else. Any NY lawyers/students/professors out there who sets me straight in the comments will be mightily appreciated.
P. 133
12 June 2004
Pennsylvania on Dog Sniffs: Reasonable Articulable Suspicion Needed
In Pennsylvania the courts hold a search by a dog to actually be a search. However, only reasonable articulable suspicion is needed to sniff a car:
Commonwealth v. Rogers
Pointer via 4th Amendment.com. I'll leave it to you to go read his rip on the fact that having Tide in a car leads to reasonable articulable suspicion.
Commonwealth v. Rogers
Appellant next contends that even if the stop was supported by reasonable suspicion, the canine search of his vehicle was illegal pursuant to Article I, § 8 of the Pennsylvania Constitution. Appellant asserts that probable cause is required before a canine sniff of an automobile may be conducted, and that standard was not met here.Could this be an influential case pointing in a direction the Federal Supreme Court might want to follow?
In addressing the constitutionality of the canine sniffs in the matter sub judice, we begin with the premise that pursuant to the constitution of this Commonwealth, a canine sniff is a search. Commonwealth v. Johnston, 530 A.2d 74, 79 (Pa. 1987). Yet, this type of search is not treated like other searches as it “is inherently less intrusive upon an individual's privacy than other searches . . . .” Id. We have noted that “this particular surveillance technique amounts to a relatively minor intrusion upon privacy, much less than is involved, say, in the physical entry and ransacking of a house in an effort to find a quantity of narcotics.” Id. Thus, we held that there need not be probable cause to conduct a canine search of a place; rather, the police need merely have reasonable suspicion for believing that narcotics would be found in the place subject to the canine sniff. Id.
This calculus shifted, however, when we were confronted with an instance in which the subject of the search was not a place but rather was a person. See Commonwealth v. Martin, 626 A.2d 556 (Pa. 1993). In Martin, we were unwilling to allow a canine sniff of a person to be conducted upon a mere showing of reasonable suspicion. We stated that “an invasion of one’s person is, in the usual case, [a] more severe intrusion on one’s privacy interest than an invasion of one’s property.” Martin, 626 A.2d at 560. We emphasized that the “principal object [of the constitutional provisions against unreasonable searches and seizures] is the protection of privacy rather than property . . . .” Id. (citations and internal quotation marks omitted). Thus, we held that while reasonable suspicion was sufficient to conduct a canine sniff of a place, that was too low a level of suspicion when a person, rather than a place, is to be subjected to a canine sniff. When the sniff is of a person, the Martin court required that “the police must have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime.” Id.
With the Johnston and Martin standards in mind, we turn to examining whether Rosie’s sniffing of the exterior and interior of Appellant’s car passes constitutional muster. We first consider her sniffing of the exterior of the car, which lead to a positive alert at the driver’s side door, as this occurred first in time. We agree with the Superior Court that Rosie’s sniffing the exterior of Appellant’s vehicle need be supported merely by reasonable suspicion. Id. 818-20. Unlike the expectation of privacy in one’s person, which in Martin we noted to be particularly high, one’s expectation of privacy in the exterior of a vehicle is more modest. While many in our society have a great fondness for their vehicles, it is too great a leap of logic to conclude that the automobile is entitled to the same sanctity as a person’s body. Furthermore, the exterior of a vehicle is exposed to the public, and is not considered an intimate space. Thus, considering the relatively minor privacy interest in the exterior of the vehicle and the minimal intrusion occasioned by a canine sniff, we conclude that mere reasonable suspicion, rather than probable cause, was required prior to Rosie sniffing the exterior of his vehicle. As Trooper Banovsky had reasonable suspicion prior to Rosie responding to the scene, see supra, then Rosie’s sniff of the exterior of the vehicle passes constitutional muster.
Pointer via 4th Amendment.com. I'll leave it to you to go read his rip on the fact that having Tide in a car leads to reasonable articulable suspicion.
Texas brightens my day yet again.
I don't think I've said this lately (but I know I have before) - whenever I get really depressed about the state of the law and the refusal to recognize or enforce people's rights in Virginia and the Fourth Circuit, I can always count on Texas to let me see that it could be worse.
Texas has been fighting to keep a 16+ year sentence in place when it knows (1) the sentence is contrary to the law and (2) the convict has served, many times over, the two years to which he could have been legally sentenced.
Texas has been fighting to keep a 16+ year sentence in place when it knows (1) the sentence is contrary to the law and (2) the convict has served, many times over, the two years to which he could have been legally sentenced.
09 June 2004
Glitch in a Flawed Statute
A first or second conviction of DUI within ten years is a misdemeanor in Virginia Or is it?
The punishment statute provides in Va Code sec. 18.2-270:
The problem with that is that the General District Court, where almost all of these cases are decided, only has original jurisdiction over misdemeanors occurring in the locality. In Virginia, a felony is defined as "punishable with death or confinement in a state correctional facility." It's a somewhat circular definition because Va Code sec 53.1-20 defines people who enter the custody of DOC by using the word "felon":
Interesting, you're thinking, but what's the point? After all, if you argue this in court all the prosecutor has to do to avoid your argument is to move for nolle prosequi and direct indict your client in Circuit Court where jurisdiction would be clear. The point is that no prosecutor I know of has been taking this step. Therefore, an unknown, but potentially large, number of citizens have been convicted by a court which did not have jurisdiction to do so.
The point is that an order handed down by a court which had no jurisdiction is (or at least ought to be) void ab initio. A court can only be given jurisdiction by the Legislature and a person acquiescing in a court order he believes valid under the law does not constitute a legislative action. This is pertinent because as the law stands prior DUI convictions are underlying offenses for DUI (2d), and the Class 6 felony (max 5 years) DUI (3d) or greater. As of 01 July 2004 DUI convictions will also be underlying convictions for the newly criminalized refusal to take a breath test. As the DUI laws get more and more draconian the issue of whether a prior conviction actually exists becomes very, very important.
The punishment statute provides in Va Code sec. 18.2-270:
A. Except as otherwise provided herein, any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.20, but not more than 0.25, he shall be confined in jail for an additional mandatory, minimum period of five days or, if the level was more than 0.25, for an additional mandatory, minimum period of 10 days. The additional mandatory, minimum period of confinement shall not be suspended by the court. In addition, such person shall be fined a mandatory, minimum fine of $250, which shall not be suspended by the court.If your BAC was .25 you face a class one misdemeanor with a maximum penalty of 12 months and 10 extra days, "an additional mandatory, minimum period" (or at .20, 12 months, 5 days). The local jail keeps my client for that extra time on top of whatever sentence the judge may set forth.
The problem with that is that the General District Court, where almost all of these cases are decided, only has original jurisdiction over misdemeanors occurring in the locality. In Virginia, a felony is defined as "punishable with death or confinement in a state correctional facility." It's a somewhat circular definition because Va Code sec 53.1-20 defines people who enter the custody of DOC by using the word "felon":
B. Persons convicted of felonies committed on or after January 1, 1995, and sentenced to the Department or sentenced to confinement in jail for a year or more shall be placed in the custody of the Department and received by the Director into the state corrections system [].Basically, anything over 12 months is a felony. It exceeds the maximum punishment of 12 months for the highest level misdemeanor (Class 1) and it subjects the convictee to potential punishment in a state correctional facility.
Interesting, you're thinking, but what's the point? After all, if you argue this in court all the prosecutor has to do to avoid your argument is to move for nolle prosequi and direct indict your client in Circuit Court where jurisdiction would be clear. The point is that no prosecutor I know of has been taking this step. Therefore, an unknown, but potentially large, number of citizens have been convicted by a court which did not have jurisdiction to do so.
The point is that an order handed down by a court which had no jurisdiction is (or at least ought to be) void ab initio. A court can only be given jurisdiction by the Legislature and a person acquiescing in a court order he believes valid under the law does not constitute a legislative action. This is pertinent because as the law stands prior DUI convictions are underlying offenses for DUI (2d), and the Class 6 felony (max 5 years) DUI (3d) or greater. As of 01 July 2004 DUI convictions will also be underlying convictions for the newly criminalized refusal to take a breath test. As the DUI laws get more and more draconian the issue of whether a prior conviction actually exists becomes very, very important.
Around the Web
From across the Pond reports that a Barrister in England was removed from the jury because he understands how the system works. I'm not exactly sure why that would be a reason to remove him. Juries are supposed to have the collective knowledge and wisdom of the community in whatever permutation might specifically take form in a particular jury's members. On the other hand, the part about him knowing the prosecutor would be a valid reason to strike because of the possibility that an impression formed from that knowledge might change the lens through which the juror sees the evidence.
Mark from Sark linked to me a while back. Not sure if I noted that before.
Mark from Sark linked to me a while back. Not sure if I noted that before.
08 June 2004
Possession of Chocolate Chip Cookies
The judge had called a "5 minute" recess1 and I'm standing there talking with a couple clerks and an officer:
1 The judge is a prototypical Virginian and does things the Virginia way. The Virginia way, as best I can tell, does not involve looking at the clock very much. He's a good judge, it's just that everyone in the courtroom knows that in minutes 5=15 and 10=30.
Clerk: I smell something like a cake or something.More proof that it's a good thing I never decided to be a police officer. Just picture it, Officer Lammers walks up on a car full of 18 year old kids and they roll down the window. "Good evening folks (sniff, sniff). Hey, ya'll eating chocolate chip cookies in there?"
Me: I smell it too. It smells like chocolate chip cookies.
Officer: That's the pound of marijuana I have in my evidence bag.
1 The judge is a prototypical Virginian and does things the Virginia way. The Virginia way, as best I can tell, does not involve looking at the clock very much. He's a good judge, it's just that everyone in the courtroom knows that in minutes 5=15 and 10=30.
Jury Silliness
Yesterday:
A jury is called and the judge and attorneys spend a hour doing jury selection. Then the judge asks if anyone needs to use the facilities before the trial begins, a couple jurors raise their hands, and the judge send them back to the jury room (which has its own facility). A minute later a juror opens the door and talks to the deputy who goes and gets the judge out of chambers. This exchange follows:
A jury is called and the judge and attorneys spend a hour doing jury selection. Then the judge asks if anyone needs to use the facilities before the trial begins, a couple jurors raise their hands, and the judge send them back to the jury room (which has its own facility). A minute later a juror opens the door and talks to the deputy who goes and gets the judge out of chambers. This exchange follows:
Judge: What seems to be the problem Ms. Smith?MISTRIAL
Juror: I'm claustrophobic; I can't stay in that little room.
Judge: Why didn't you say something when I asked if anyone had any problems which might keep them from being able to complete their duty as a juror?
Juror: I didn't realize the room would be so small and without any windows. I'll be OK. I'll just have to take my valium.
07 June 2004
The Evil of Wanting to Get Paid for Your Work
Delegate Hamilton starts this editorial by outlining some of the changes in indigent defense which the Legislature has undertaken. He then goes into attack mode because lawyers who are losing a substantial portion of their business to newly founded public defenders offices admit that they depended on the money they earned from doing court appointed work.
Second, does anybody actually believe that the reason the Legislature is putting these offices in place is because the members are concerned about the representation of the indigent? These offices are going in place for the very reason that the Delegate alludes to when he complains that 75% of money paid for indigent defense went to private attorneys who only did 25% of the work. The Legislature wants to save money and it could care less about the representation. If the members seriously believed that socializing criminal defense is the best thing that can be done for indigent Defendants it would mandate public defenders throughout the Commonwealth. - BTW: It seems to me that the 75/25 numbers, &cetera are iffy; they are probably very heavily skewed by capital murder trials and particularly by the Muhammad/Malvo circuses.
Third: Yes, my primary source of income is from defending the indigent; it is therefore my “bread & butter.” However, anyone who thinks I’m getting rich doing this should go out and look at my 15 year old clunker which I hope will last for quite a while longer. I would be very concerned if, after I have spent years developing my practice, someone came along and yanked away that which I had relied upon to pay my bills. I’m sorry Delegate Hamilton, but I am not a saint. I do not live in a cave, wash up out of the rain barrel, and put on my one threadbare suit so that I can walk to the courthouse and represent people for free. Nor does the fact that I represent the indigent keep my creditors from wanting to get paid. I live in the real world and have to consider things which happen in the real world.
All that said, I try to represent every one of my clients as best I can. The fact that I have to worry about paying my rent does not mean I am less upset when someone I believe is innocent is found guilty. It does not stop me from researching issues and arguing them in court. It does not stop me from putting on the jury trial when it is my client’s best interest or if he demands one. What’s the quickest way to stop me from striving for my clients? Shut me down by not paying me or take my work away by socializing it.
Fourth: Why is a Republican advocating either (a) socialization of a private business sector, or (b) professional businessmen working without getting paid adequately?
Fifth: This whole editorial strikes me as a defiant scream of a cornered Legislature which knows it is in the wrong. It has refused session after session to raise fees to anything comparable to what they are in other States. Something has got to break soon. Personally, I don’t think the Legislature is capable of raising the fee caps to reasonable amounts on serious felonies because of election concerns (“Delegate Smith was more interested in the defense of criminals than citizens. Vote Jones.”). On the other hand fee caps which stop payment on a non-capital murder trial (jury) at $1,096 are so clearly wrong that they create serious problems. If I had a crystal ball, I’d say that eventually the federal courts will require Virginia to fix itself.
Sixth: Assuming (1) the 75/25 numbers are correct, (2) that public defenders offices really are a good thing, & (3) the fee caps are dangerously low enough to make federal intervention a distinct possibility: The Legislature could get really creative, mandate public defender offices throughout the Commonwealth, and then double all fee caps for court appointed attorneys (maybe even triple them). It’s a workable solution. Of course, the only problem is the massive funding hit at the beginning when the offices are set up. After that it should even out or maybe come to a lesser amount. You could even alleviate some of the setup burden by requiring localities to match, penny for penny, all the money and benefits they give to prosecutors (including free office space) with money for PD offices.
Addendum: As I read back through this I realize that some might take it as inferring that I think PD offices are inferior. That's not true. I have seen some amazing attorneys who are PD's; they are usually buried under a staggering workload but they are very good. I've also seen some very bad private lawyers. I'm just not convinced that if the Commonwealth were to adequately fund private attorneys and provide them with experts etc. when necessary that there is much difference. My concern is that PD offices will be set up and be perpetually understaffed, underpaid, overworked, and the darling of a Legislature obsessed with the bottom line rather than an adequate defense. After all they are guilty or the officer wouldn't have charged them - right?
Addendum 2: Forgot to give credit where due: Lv SW VA Law.
According to a May 20 article in the Daily Press, the last initiative seems to have met with displeasure by some lawyers in the local legal community. Surprise, surprise! Private lawyers complaining because the creation of these public defenders offices might cause their taxpayer-funded government subsidy to be reduced.First of all, payment for WORK done in the defense of those indigent accused of a crime is not a “taxpayer-funded government subsidy.” It is WORK and should be paid for.
In 2003, a local lawyer referred to court-appointed work for indigent defendants as a "meal ticket." In the most recent Daily Press article, another local lawyer made the following comment: "For a lot of guys in the city, it's their primary bread and butter." Another lawyer "expects to have to reorient his practice to make up for the loss of court-appointed cases."
Never once did these lawyers mention the rights of indigent defendants as their focus or priority. This too should come as no surprise, as the Spangenberg report quoted one local lawyer as being candid and "admitting that with a retained client, he spends substantially more time looking for an issue that will benefit the client, while in a court-appointed case he spends as little time as possible looking for an issue that will dispose of the case. He added, 'If we want to make a living we have to get rid of the case as quickly as possible.'"
. . .
[R]eferences to court-appointed work as one's "meal ticket" or "primary bread and butter" underscore a serious issue in addressing the constitutional rights of indigent defendants. Thankfully, there are many private and public attorneys in our society who are willing to provide these important legal services without focusing on the public subsidy they receive to maintain a private legal practice.
Second, does anybody actually believe that the reason the Legislature is putting these offices in place is because the members are concerned about the representation of the indigent? These offices are going in place for the very reason that the Delegate alludes to when he complains that 75% of money paid for indigent defense went to private attorneys who only did 25% of the work. The Legislature wants to save money and it could care less about the representation. If the members seriously believed that socializing criminal defense is the best thing that can be done for indigent Defendants it would mandate public defenders throughout the Commonwealth. - BTW: It seems to me that the 75/25 numbers, &cetera are iffy; they are probably very heavily skewed by capital murder trials and particularly by the Muhammad/Malvo circuses.
Third: Yes, my primary source of income is from defending the indigent; it is therefore my “bread & butter.” However, anyone who thinks I’m getting rich doing this should go out and look at my 15 year old clunker which I hope will last for quite a while longer. I would be very concerned if, after I have spent years developing my practice, someone came along and yanked away that which I had relied upon to pay my bills. I’m sorry Delegate Hamilton, but I am not a saint. I do not live in a cave, wash up out of the rain barrel, and put on my one threadbare suit so that I can walk to the courthouse and represent people for free. Nor does the fact that I represent the indigent keep my creditors from wanting to get paid. I live in the real world and have to consider things which happen in the real world.
All that said, I try to represent every one of my clients as best I can. The fact that I have to worry about paying my rent does not mean I am less upset when someone I believe is innocent is found guilty. It does not stop me from researching issues and arguing them in court. It does not stop me from putting on the jury trial when it is my client’s best interest or if he demands one. What’s the quickest way to stop me from striving for my clients? Shut me down by not paying me or take my work away by socializing it.
Fourth: Why is a Republican advocating either (a) socialization of a private business sector, or (b) professional businessmen working without getting paid adequately?
Fifth: This whole editorial strikes me as a defiant scream of a cornered Legislature which knows it is in the wrong. It has refused session after session to raise fees to anything comparable to what they are in other States. Something has got to break soon. Personally, I don’t think the Legislature is capable of raising the fee caps to reasonable amounts on serious felonies because of election concerns (“Delegate Smith was more interested in the defense of criminals than citizens. Vote Jones.”). On the other hand fee caps which stop payment on a non-capital murder trial (jury) at $1,096 are so clearly wrong that they create serious problems. If I had a crystal ball, I’d say that eventually the federal courts will require Virginia to fix itself.
Sixth: Assuming (1) the 75/25 numbers are correct, (2) that public defenders offices really are a good thing, & (3) the fee caps are dangerously low enough to make federal intervention a distinct possibility: The Legislature could get really creative, mandate public defender offices throughout the Commonwealth, and then double all fee caps for court appointed attorneys (maybe even triple them). It’s a workable solution. Of course, the only problem is the massive funding hit at the beginning when the offices are set up. After that it should even out or maybe come to a lesser amount. You could even alleviate some of the setup burden by requiring localities to match, penny for penny, all the money and benefits they give to prosecutors (including free office space) with money for PD offices.
Addendum: As I read back through this I realize that some might take it as inferring that I think PD offices are inferior. That's not true. I have seen some amazing attorneys who are PD's; they are usually buried under a staggering workload but they are very good. I've also seen some very bad private lawyers. I'm just not convinced that if the Commonwealth were to adequately fund private attorneys and provide them with experts etc. when necessary that there is much difference. My concern is that PD offices will be set up and be perpetually understaffed, underpaid, overworked, and the darling of a Legislature obsessed with the bottom line rather than an adequate defense. After all they are guilty or the officer wouldn't have charged them - right?
Addendum 2: Forgot to give credit where due: Lv SW VA Law.
New Standards for Court Appointments
The Virginia Lawyers Weekly last week went through some of the things which are going to be required of court appointed attorneys beginning next year.
First we are going to be required to attend at least 6 hours of a criminal defense CLE every two years (I do that about every 4-5 months).
Second, in order to be appointed to cases of a certain level you must have been counsel or co-counsel on 4 cases of the same level. This apparently breaks down to misdemeanors, JDR court matters, felonies, and capital cases. That should prove to be a significant entry barrier. Many people who try to get on lists now are civil attorneys who are dabbling because “our firm believes in giving something back” or new attorneys who are trying to get their feet under them and therefore are putting in some time in the criminal courts. The practice of criminal law will probably consolidate in firms where an established criminal lawyer can mentor a young lawyer for the year or two it might take to get him through four felonies as co-counsel. I cannot wait to see established attorneys at the front of the courtroom with their new associates taking care of driving suspended charges so that the associates can get four co-counsel misdemeanors under their belts.
Third, there is going to be a list kept somewhere of those with the imprimatur of the Virginia Indigent Defense Commission. Those on the list can defend the indigent. Others will have to go get rich elsewhere.
First we are going to be required to attend at least 6 hours of a criminal defense CLE every two years (I do that about every 4-5 months).
Second, in order to be appointed to cases of a certain level you must have been counsel or co-counsel on 4 cases of the same level. This apparently breaks down to misdemeanors, JDR court matters, felonies, and capital cases. That should prove to be a significant entry barrier. Many people who try to get on lists now are civil attorneys who are dabbling because “our firm believes in giving something back” or new attorneys who are trying to get their feet under them and therefore are putting in some time in the criminal courts. The practice of criminal law will probably consolidate in firms where an established criminal lawyer can mentor a young lawyer for the year or two it might take to get him through four felonies as co-counsel. I cannot wait to see established attorneys at the front of the courtroom with their new associates taking care of driving suspended charges so that the associates can get four co-counsel misdemeanors under their belts.
Third, there is going to be a list kept somewhere of those with the imprimatur of the Virginia Indigent Defense Commission. Those on the list can defend the indigent. Others will have to go get rich elsewhere.
Why Me?
Crime and Federalism wonders why I am still doing court-appointed work (and, perhaps, overestimates my abilities). I wish I had a noble answer but must admit that the primary reason is that I really don’t have anywhere else to go (although at times it does feel really good to help someone who needs it). I have my own solo practice which I’ve nurtured from a folding table, an out of date computer, and an old beaten up swivel chair in a room of my apartment to the point where I now have a pretty nice - albeit out of the way - office of my own. 99% of that has been by court appointed work. This means that I have gained a good amount of experience but that I am relatively unknown outside of the courthouse. So, clients aren’t exactly beating a path to my door and no firm out there is really anxious to bring me into the fold because I carry no portables.
So the next option is to grow my practice. The problem is that in order to pay bills (and often not even all of them) you have to churn a lot of court appointed cases. This is because Virginia caps its fees at very low levels. So you spend your time running from jail to courthouse to jail; I think I average two days a week wherein I do not even see the inside of my office. Needless to say, this is not conducive to developing other areas of practice or making yourself available to those who might have been interested in hiring you.
All-in-all, it's a little bit of a trap. I often contemplate other options like joining a public defender’s office or a prosecutor’s office or even scrapping it all and looking for employment at some other firm. It may happen some day. Heck, who knows, maybe somebody from Huntin’ and Gruntin’ will call me tomorrow and offer me 120K+. After I picked myself up from the floor, there’s no way I could turn that down - however, I would have serious questions about their sanity. But short of that I will continue on the path at least for the foreseeable future.
So the next option is to grow my practice. The problem is that in order to pay bills (and often not even all of them) you have to churn a lot of court appointed cases. This is because Virginia caps its fees at very low levels. So you spend your time running from jail to courthouse to jail; I think I average two days a week wherein I do not even see the inside of my office. Needless to say, this is not conducive to developing other areas of practice or making yourself available to those who might have been interested in hiring you.
All-in-all, it's a little bit of a trap. I often contemplate other options like joining a public defender’s office or a prosecutor’s office or even scrapping it all and looking for employment at some other firm. It may happen some day. Heck, who knows, maybe somebody from Huntin’ and Gruntin’ will call me tomorrow and offer me 120K+. After I picked myself up from the floor, there’s no way I could turn that down - however, I would have serious questions about their sanity. But short of that I will continue on the path at least for the foreseeable future.
06 June 2004
Police "Experts"
Public Defender Dude talks about the extremes that police "gang experts" will go to in order to claim someone is a member of a gang.
As of yet, I have not had to face down a policeman claiming to be a gang expert (until recently local police denied any gang presence). However, I can entirely understand the sentiment. Personally, the "experts" which bother me the most are police "drug experts."
What, you ask, is a police drug expert? Well, an example of one I faced in court was a 7 year veteran of the force who had spent the last 5 in the street drug task force. Only a couple problems with that. First, he was quite clearly biased. Second, he had absolutely no training beyond street experience and whatever internal training the police offered. He had no objective training, no exposure to any sort of research or statistical data which could indicate probabilities based on activities or the presence of certain items. Basically, he was there to testify that my client was in some way similar to others whom he had arrested.
His testimony was that my client had to be a dealer rather than a user because he had a cellular phone and a beeper, he had a couple hundred dollars, and there were plastic bags under the driver's seat in his mother's vehicle (which he was driving). The drugs (one rock and a decent amount of marijuana) were in a bag which my client claimed he did not know was in the back of the van. We were able to put his boss on to testify that the money was from getting paid that day in cash (construction workers are often paid under the table with cash). The mother, rather indignantly, testified that the bags were hers and she always kept a box of them under her seat because she had grandkids and put opened candy, rattles, pacifiers, etc. in the bags so they wouldn't get dirty and wouldn't screw up her vehicle. As for the beeper and cell phone, when the police took the phone they also took its charger - leading to this exchange:
Of course, this sort of thing works in a jury trial. When you do it during a bench trial the judge compliments you on your cleverness (at least they do around here) and convicts your client anyway. I sometimes think that police "experts" could tell a judge the sky was green on the day of the offense and be believed.
On a side note, I still think I would have won the trial if it hadn't been for the blowjob coupon book.
As of yet, I have not had to face down a policeman claiming to be a gang expert (until recently local police denied any gang presence). However, I can entirely understand the sentiment. Personally, the "experts" which bother me the most are police "drug experts."
What, you ask, is a police drug expert? Well, an example of one I faced in court was a 7 year veteran of the force who had spent the last 5 in the street drug task force. Only a couple problems with that. First, he was quite clearly biased. Second, he had absolutely no training beyond street experience and whatever internal training the police offered. He had no objective training, no exposure to any sort of research or statistical data which could indicate probabilities based on activities or the presence of certain items. Basically, he was there to testify that my client was in some way similar to others whom he had arrested.
His testimony was that my client had to be a dealer rather than a user because he had a cellular phone and a beeper, he had a couple hundred dollars, and there were plastic bags under the driver's seat in his mother's vehicle (which he was driving). The drugs (one rock and a decent amount of marijuana) were in a bag which my client claimed he did not know was in the back of the van. We were able to put his boss on to testify that the money was from getting paid that day in cash (construction workers are often paid under the table with cash). The mother, rather indignantly, testified that the bags were hers and she always kept a box of them under her seat because she had grandkids and put opened candy, rattles, pacifiers, etc. in the bags so they wouldn't get dirty and wouldn't screw up her vehicle. As for the beeper and cell phone, when the police took the phone they also took its charger - leading to this exchange:
Me: Officer you see this item? What is it?A couple of jurors actually laughed at the guy. I had expected the officer to say something about how even the cheap phones have to be recharged and planned on pulling out the phone because it was obviously not a throw away phone. But I didn't think it could get much better than that so I left it alone.
Officer: A phone charger.
Me: That would indicate that the phone is a permanent phone - not one of those you buy with 100 hours and then throw away?
Officer (looking puzzled): Yes sir.
Me: The point of the beeper/phone setup for a drug dealer is to have a beeper to get called on and a phone which cannot be traced back to him to call back on?
Officer: Yes sir.
Me: So, that doesn't work if you have a permanent phone does it?
Officer: No sir, but it's my experience that criminals aren't that smart.
Of course, this sort of thing works in a jury trial. When you do it during a bench trial the judge compliments you on your cleverness (at least they do around here) and convicts your client anyway. I sometimes think that police "experts" could tell a judge the sky was green on the day of the offense and be believed.
On a side note, I still think I would have won the trial if it hadn't been for the blowjob coupon book.
05 June 2004
A First View of the Criminal Justice System
Josh has a couple posts on his first impressions of the criminal law system in Philly.
Virginia Court of Appeals 5/25 & 6/01
Okay, who kidnapped our Court of Appeals and replaced them with a group who would take 6 cases, completely reverse 4, partially reverse 1, and only uphold one decision in its entirety? I think that we may need to check the Court's basement for pods.
Myers v. Commonwealth - Subject Matter: (1) Standard of Review-Sufficiency of Circumstantial Evidence & (2) Sufficiency of Evidence.
Facts: A truck runs a stop sign. After pursuit by a deputy, the truck stops and the driver flees. The passenger is a paraplegic and remains in the truck. A later search of the truck finds a pistol wrapped in a blanket in a pile of garbage on the floorboard. A later search of the area finds a stolen pistol about 60 feet from where the driver's side door was. No other relevant evidence.
(1) As best I can tell the Commonwealth tried to extend Maryland v. Pringle so that the presence of contraband in a vehicle would not only be sufficient for probable cause to arrest everyone in the vehicle but also sufficient for conviction under beyond a reasonable doubt. The Commonwealth also relies somehow on Hudson v. Commonwealth but, try as I might, I cannot settle on a way which the Commonwealth could have done this which I think would pass the red-face test.
Whatever the Commonwealth was trying to accomplish, the Court of Appeals rebuffs it.
(2) The Court applies Hancock v. Commonwealth and finds that a paraplegic passenger, in somebody else's vehicle, is not in possession of a firearm on the floorboard wrapped in a blanket, under a pile of trash. He is also not in possession of a stolen gun found 60 feet away, on the other side of the vehicle. Not being in possession of the gun he could only be convicted of its theft if he were a principal in the second degree and (assuming but not deciding that the gun had been in the truck) there is "neither proof that the appellant failed to oppose the theft nor proof of other circumstances upon which to find he acted as a principal in the second degree."
Personal Note: It's good to see that someone out there, besides myself, still believes in Hancock. The last time I cited it in court the trial judge told me he wasn't sure Hancock reflected Virginia law. He then refused to apply it.
Nisbet v. Virginia Beach & Strout v. Virginia Beach - Subject: Power of a locality to enforce an ordinance
Note: Both opinions are word for word the same.
A locality cannot use an ordinance to exceed the punishment which is meted out under the Virginia Code. Conviction under the ordinance is reversed.
-- WARNING --
-- Explicit Language Follows --
Allman v. Commonwealth - Subject: Whether calling someone a "pussy" qualifies as obscene language.
Facts: During a hearing an attorney sends an associate rather than coming to court himself. After the hearing has concluded the other party calls the attorney directly and leaves a message:
Analysis: With respect, the Court is wrong. The charged offense was (basically) the use of obscene language to coerce, intimidate, or harass." The language used could easily fit under the obscenity prong. However, the Court's error is harmless because there is no way that obscene language in a single call - with the primary purpose of notifying a party of an intent to appeal - violates the second prong (at least not beyond a reasonable doubt). The Court's analysis that the language was meant to convey a belief that Nabhan is a coward would fit better under the second prong.
Breeden v. Commonwealth - Subject: Rape, Use of Firearm in Felony, B&E, 5A:18, & Recent Complaint Exception to Hearsay.
(1) When a complaining witness tells of being hit and a threat by the accused to harm himself it substantiates the use of force or threat element in proving a rape despite the "the complaining witness' explicit testimony that Breeden did not force, threaten, or intimidate her to have sex." (a) The judge has the option of ignoring inconsistent evidence from the complaining witness. (b) A threat to harm one's self is a threat to harm another and therefore fulfills the element.
(2) Putting a firearm under one's chin and threatening to kill one's self in order to force someone to have sex with you is using a firearm in commission of a felony (rape).
(3) If one breaks into a house, waits for the owner, confronts her with a gun, grabs her, shoves her, and hits her the Court of Appeals will uphold a conviction of B&E with intent to commit battery.
(4) Under Rule 5A:18 in order to argue something before the court it must have been preserved by an objection at trial. If it was not preserved by objection the appellate court will consider a question only if the trial record proves that an element of the offense did not occur or that the appellant was convicted of conduct which is not a criminal offense.
(5) (a) Va Code Sec 19.2-268.2 provides a recent-complaint exception to the hearsay rule in sexually related charges (for those of you not from Virginia our evidentiary rules are not laid out in any particular order in any particular place). Under this statute
Note: On its face, the statute does not support that interpretation. The "fact" of a complaint is not the substance of a complaint. Facially, the most this statute allows is the following exchange:
Prosecutor: "Did she tell you she'd been raped?"
Witness: "Yes"
I'm not sure how a Court obligated to interpret statutes strictly against the Commonwealth can allow this hearsay in to a trial.
(b) When admissible and inadmissible evidence are intertwined a trial judge, in a bench trial, can admit it under the assumption that the judge will be able to entirely ignore and be uneffected by the inadmissible evidence.
Lewis v. Commonwealth - Subject: (1) Scope of Impeachment & (2) 5A:18
(1) If a witness admits to having known another party in the trial for a while and then admits to conviction of a crime, the lawyer can ask if the other party was involved with the witness in that type of crime even if there is absolutely no prior evidence of any involvement. i.e.
Lawyer: "How long have you known Mr. Smith?"
Witness: "Three years."
Lawyer: "Have you been convicted of murder?" (Yes, I know asking about a particular crime is not allowed but it must be after this decision)
Witness: "Yes."
Lawyer: "Is that murder what connects you to Mr. Smith?"
Witness: (Who cares? It doesn't matter what he answers the jury now sees the other party as a potential murderer)
Note: In fairness this may only apply to cases where there is some sort of agreement or ongoing trade (solicitation, sale of drugs, fencing, gang crime). At least I hope that's as far as this ruling extends. The decision doesn't seem to have that sort of limitation in it.
Not that it should have to; this line of questioning should never be allowed by the prosecutor or Defense (I could have a field day with this). This is the Court allowing a highly prejudicial fishing expedition. The questions have no purpose other than the exceedingly small chance of a positive answer which is massively outweighed by the prejudice which is meant to adhere to Mr. Smith by the mere asking of the question (without any proof of anything).
It's a bad decision which opens impeachment to the potential of abuse from all sides.
(2) When Defendants enter a house to rob those inside they cannot be found guilty of attempting to rob someone outside the house even if that person enters the house (victim was shot dead as he entered house but not robbed). Under these facts the transcript affirmatively proves innocence of attempted robbery. Therefore the conviction is a manifest injustice and there need not be any contemporaneous objection at trial.
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Myers v. Commonwealth - Subject Matter: (1) Standard of Review-Sufficiency of Circumstantial Evidence & (2) Sufficiency of Evidence.
Facts: A truck runs a stop sign. After pursuit by a deputy, the truck stops and the driver flees. The passenger is a paraplegic and remains in the truck. A later search of the truck finds a pistol wrapped in a blanket in a pile of garbage on the floorboard. A later search of the area finds a stolen pistol about 60 feet from where the driver's side door was. No other relevant evidence.
(1) As best I can tell the Commonwealth tried to extend Maryland v. Pringle so that the presence of contraband in a vehicle would not only be sufficient for probable cause to arrest everyone in the vehicle but also sufficient for conviction under beyond a reasonable doubt. The Commonwealth also relies somehow on Hudson v. Commonwealth but, try as I might, I cannot settle on a way which the Commonwealth could have done this which I think would pass the red-face test.
Whatever the Commonwealth was trying to accomplish, the Court of Appeals rebuffs it.
(2) The Court applies Hancock v. Commonwealth and finds that a paraplegic passenger, in somebody else's vehicle, is not in possession of a firearm on the floorboard wrapped in a blanket, under a pile of trash. He is also not in possession of a stolen gun found 60 feet away, on the other side of the vehicle. Not being in possession of the gun he could only be convicted of its theft if he were a principal in the second degree and (assuming but not deciding that the gun had been in the truck) there is "neither proof that the appellant failed to oppose the theft nor proof of other circumstances upon which to find he acted as a principal in the second degree."
Personal Note: It's good to see that someone out there, besides myself, still believes in Hancock. The last time I cited it in court the trial judge told me he wasn't sure Hancock reflected Virginia law. He then refused to apply it.
Nisbet v. Virginia Beach & Strout v. Virginia Beach - Subject: Power of a locality to enforce an ordinance
Note: Both opinions are word for word the same.
A locality cannot use an ordinance to exceed the punishment which is meted out under the Virginia Code. Conviction under the ordinance is reversed.
-- WARNING --
-- Explicit Language Follows --
Allman v. Commonwealth - Subject: Whether calling someone a "pussy" qualifies as obscene language.
Facts: During a hearing an attorney sends an associate rather than coming to court himself. After the hearing has concluded the other party calls the attorney directly and leaves a message:
The message contained numerous unflattering characterizations of Nabhan, referring to him as "a pussy" or "puss" twenty times, and lasted approximately six minutes. Appellant's repeated use of the word, "pussy," included references to female excretory functions. Appellant indicated his belief that Nabhan must be "squatting to pee" in "the ladies room" of his law firm "[be]cause [appellant believed Nabhan] is such a pussy." Appellant indicated he would send Nabhan's copy of his notice of appeal to the attention of the ladies' room at Nabhan's firm because "I know that's where you hang out all the time, because you are such a big pussy." Appellant said Nabhan should become more masculine and courageous by "grow[ing] a set of balls" and said that, even if Nabhan "[grew] a set of balls," left the ladies' room, and "start[ed] lifting weights," Nabhan would still need twelve to twenty other attorneys to accompany him to oral argument before the Supreme Court.The test for obscenity applied:
Under [a] "contemporary community standards of sexual candor," [does] the statement, "considered as a whole," [either] (1) "ha[ve] as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse," [or](2) "[go] substantially beyond the customary limits of candor in description or representation of such matters."Finding: "[T]hough utterly tasteless and rude, [the language] merely served to emphasize appellant's belief in Nabhan's cowardice." Therefore, it was not obscene.
Analysis: With respect, the Court is wrong. The charged offense was (basically) the use of obscene language to coerce, intimidate, or harass." The language used could easily fit under the obscenity prong. However, the Court's error is harmless because there is no way that obscene language in a single call - with the primary purpose of notifying a party of an intent to appeal - violates the second prong (at least not beyond a reasonable doubt). The Court's analysis that the language was meant to convey a belief that Nabhan is a coward would fit better under the second prong.
Breeden v. Commonwealth - Subject: Rape, Use of Firearm in Felony, B&E, 5A:18, & Recent Complaint Exception to Hearsay.
(1) When a complaining witness tells of being hit and a threat by the accused to harm himself it substantiates the use of force or threat element in proving a rape despite the "the complaining witness' explicit testimony that Breeden did not force, threaten, or intimidate her to have sex." (a) The judge has the option of ignoring inconsistent evidence from the complaining witness. (b) A threat to harm one's self is a threat to harm another and therefore fulfills the element.
(2) Putting a firearm under one's chin and threatening to kill one's self in order to force someone to have sex with you is using a firearm in commission of a felony (rape).
(3) If one breaks into a house, waits for the owner, confronts her with a gun, grabs her, shoves her, and hits her the Court of Appeals will uphold a conviction of B&E with intent to commit battery.
(4) Under Rule 5A:18 in order to argue something before the court it must have been preserved by an objection at trial. If it was not preserved by objection the appellate court will consider a question only if the trial record proves that an element of the offense did not occur or that the appellant was convicted of conduct which is not a criminal offense.
(5) (a) Va Code Sec 19.2-268.2 provides a recent-complaint exception to the hearsay rule in sexually related charges (for those of you not from Virginia our evidentiary rules are not laid out in any particular order in any particular place). Under this statute
the fact that the person injured made complaint of the offense recently after commission of the offense is admissible, not as independent evidence of the offense, but for the purpose of corroborating the testimony of the complaining witness.This statute is construed as allowing in statements made to third party witnesses.
Note: On its face, the statute does not support that interpretation. The "fact" of a complaint is not the substance of a complaint. Facially, the most this statute allows is the following exchange:
Prosecutor: "Did she tell you she'd been raped?"
Witness: "Yes"
I'm not sure how a Court obligated to interpret statutes strictly against the Commonwealth can allow this hearsay in to a trial.
(b) When admissible and inadmissible evidence are intertwined a trial judge, in a bench trial, can admit it under the assumption that the judge will be able to entirely ignore and be uneffected by the inadmissible evidence.
Lewis v. Commonwealth - Subject: (1) Scope of Impeachment & (2) 5A:18
(1) If a witness admits to having known another party in the trial for a while and then admits to conviction of a crime, the lawyer can ask if the other party was involved with the witness in that type of crime even if there is absolutely no prior evidence of any involvement. i.e.
Lawyer: "How long have you known Mr. Smith?"
Witness: "Three years."
Lawyer: "Have you been convicted of murder?" (Yes, I know asking about a particular crime is not allowed but it must be after this decision)
Witness: "Yes."
Lawyer: "Is that murder what connects you to Mr. Smith?"
Witness: (Who cares? It doesn't matter what he answers the jury now sees the other party as a potential murderer)
Note: In fairness this may only apply to cases where there is some sort of agreement or ongoing trade (solicitation, sale of drugs, fencing, gang crime). At least I hope that's as far as this ruling extends. The decision doesn't seem to have that sort of limitation in it.
Not that it should have to; this line of questioning should never be allowed by the prosecutor or Defense (I could have a field day with this). This is the Court allowing a highly prejudicial fishing expedition. The questions have no purpose other than the exceedingly small chance of a positive answer which is massively outweighed by the prejudice which is meant to adhere to Mr. Smith by the mere asking of the question (without any proof of anything).
It's a bad decision which opens impeachment to the potential of abuse from all sides.
(2) When Defendants enter a house to rob those inside they cannot be found guilty of attempting to rob someone outside the house even if that person enters the house (victim was shot dead as he entered house but not robbed). Under these facts the transcript affirmatively proves innocence of attempted robbery. Therefore the conviction is a manifest injustice and there need not be any contemporaneous objection at trial.
03 June 2004
Thornton v. United States: Is There a Light at the End of the Tunnel?
As those of you who’ve read this blawg for long already know, when you get in your car you give up certain basic constitutional rights (basically you waive much of the 4th Amendment). Thorton takes a step even further down that road.
Issue: Can an officer search a car after the driver gets out and walks away under the pretense that he is securing dangerous items within the suspect’s reach and/or keeping the suspect from destroying evidence?
The Majority:
Rule: “So long as an arrestee is [a] "recent occupant" of a vehicle . . . officers may search that vehicle incident to the arrest.”
Reasoning: Belton allows the search of a car’s entire interior if the suspect was contacted while still in the vehicle. Belton allows this in order to remove weapons within the reach of the arrestee and prevent concealment or destruction of evidence.
This decision had to be decided the way it was because otherwise Belton falls to the wayside as useless precedent. The hanging thread waiting for a good yank to unravel Belton has been the fact that well-trained, sane police officers remove people from cars when they believe that the person may be dangerous or might try to destroy evidence. Why do they do this? Because once you remove someone from the vehicle (and most likely handcuff him) it removes the arrestee from any place where he might reach a weapon concealed in the car or destroy any evidence secreted there. The majority even specifically recognizes this:
The Court goes on to claim that a recent occupant test is more precise than the “contact initiation” test urged by the petitioner. It tries to raise the bogeyman that police and courts will have fits trying to figure out when contact was initiated. It just doesn’t work. We all know that contact is easily delineated (it’s when the officer turns on his car’s lights or when he first talks to the guy). It’s very difficult to state the vagueries in a test where the line is drawn at whether the suspect is in or out of the car. On the other hand if you’ve ever seen or read cases trying to decide how long police can impose on a suspect you know how hard it is to determine a reasonable time.
This opinion is a badly reasoned attempt to shore up an undefendable precedent.
How did we get here?
Well, the first step down this path was grounded in reason. Chimel v. California sets out an exception which makes sense. If an officer’s in a room with an arrestee he can search the immediate area in order to make sure there are no weapons or evidence which the arrestee might put hands on to either use or hide/destroy. There are all sorts of scenarios where this exception makes sense. For instance, if a single officer cannot take the arrestee away from the area of the arrest because someone outside is shooting or there is an injured victim and the officer must wait for an ambulance. In these cases it would behoove the officer to search the area near the arrestee to make sure nothing happens while the officer is otherwise occupied.
The problem is that there is no such thing as an “exception.” When police departments learn about “exceptions” which will allow them further latitude policies (official and unofficial) change. So a search of the immediate area becomes the norm, even when police could easily maintain control over the arrestee and remove him from the area. 11 years later the question arises as to whether a search of a car can be done without warrants in Belton. Looking to the regular practice ne exception of searching the area around someone arrested the Court carves out another exception allowing the search of the entire passenger compartment of a car and this proceeds to become the norm. The only problems are that the “exception” isn’t and the reasoning for the search of the car is bad. How often is an officer going to leave the arrestee in his own car where he could reach the weapon or the drugs? The answer to that should be about 0% of the time. So Belton becomes an extension of police powers without any rational explanation as to why we should allow this bypassing of the 4th Amendment. And now comes Thornton which extends Belton to allow car searches when someone was “recently” in the car. The threat? That an arrestee might get back into his car to access a weapon or destroy drugs. In this particular case, the threat that a handcuffed man, locked in the back of a patrol car might somehow break out and run back to his car to accomplish these things. A sensible rule has been stretched until there is no way to rationally justify it.
The Concurrences
Justice O’Connor: Having joined all of the Majority’s opinion except footnote 4 (a dismissal of Scalia’s rationale), Justice O’Connor concludes “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California. That erosion is a direct consequence of Belton's shaky foundation. While the approach Justice Scalia proposes appears to be built on firmer ground, I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit.”
Justice Scalia:
Proposed Standard: (1) Application of Chimel to vehicles should be limited to those circumstances when there is an actual threat to safety or evidence. (2) Searches of vehicles should be limited to those circumstances where there is a reasonable basis to believe that evidence of a crime is in the car (reasonable articulable suspicion).
To begin with Justice Scalia dismembers the majority’s reasoning:
There is also the worry that this is an authorization for general warrants. To his credit, Scalia takes this on directly pointing out conflicting precedent as far back as Entick v. Carrington, 19 How. St. Tr. 1029, 1031, 1063-1074 (C. P. 1765). He points to a couple cases which distinguish this precedent but does not elaborate on how they do so: Dillon v. O'Brien, 16 Cox C. C. 245, 250 (Ex. Div. Ire. 1887) & Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 303-304 (1967).
Scalia concludes:
A more pertinent concern might be the general warrant concern. On a theoretical level it is a greater concern than a search under the Belton/Chimel rationale. However, in its real world application Belton has become an authorization for searches which are the same scope as searches under general warrants. At least the proposed standard provides some sort of curb to the unfettered ability of the officers to search any car they wish.
Dissent:
Justice Stevens
Proposed Rule: Belton should apply to one stopped for arrest while in the car. Chimel should govern police searches of a pedestrian outside his automobile. Probable cause should be required to search a car after the driver has departed from it.
While continuing to support Belton, Stevens indirectly rejects Scalia's option and favors a purer application of constitutional principle for those who have departed their cars:
Overall Analysis: Unfortunately, the scope of constitutional rights for those who choose to drive a car (not really a choice in modern society) continues to be shrunk by the Court. Law enforcement will take this decision and push it as far as possible. One can foresee all sorts of excuses for searching a car after longer and longer periods of time: “Once Defendant left his car and went inside, Officer Smith maintained the car in view for the entire 2 hour stakeout until we arrested the Defendant after he had fallen asleep (for officer safety reasons). We then searched the car because it had only been a short time, the Defendant had only gone as far as his house, and car had not been used or approached by any other individuals.” Trial courts and courts appellate will support these expansions.
It's a bad decision and it will lead to bad results.
Of course a good part of this decision's problem rises from the fact that it is almost impossible to defend the carte blanche searches allowed by Belton. Unless willing to recognize the terrible reasoning in Belton and throw it out the Court will never be on solid ground in this area and all decisions will be GIGO.
Assuming Belton remains good law, Justice Stevens provides the most logical and easily followed rule. Nevertheless, there seems to be no real interest in adopting this rule.
Scalia offers a tempting choice. It would get rid of the Belton fallacies and offer a test no more confusing than any other test concerning the 4th Amendment (and probably far less than trying to divine what appellate courts think a reasonable person's reasonable expectation of privacy is – almost always far less than the expectations of people I know). As I would like to see drivers' 4th Amendment rights restored and enforced, it is not my preference. Still it is a siren's song in that it has the potential for adoption by the courts. There are definitely 2 votes here and probably a third in O'Connor. And I can't see the reason for footnote 4 except to keep members of the Majority who were leaning philosophically on board procedurally. So there is still some hope for a standard which would restore some rights to the citizenry. It's not the one I would prefer but anything's better than the standardless shakedown searches which are now allowed.
Issue: Can an officer search a car after the driver gets out and walks away under the pretense that he is securing dangerous items within the suspect’s reach and/or keeping the suspect from destroying evidence?
The Majority:
Rule: “So long as an arrestee is [a] "recent occupant" of a vehicle . . . officers may search that vehicle incident to the arrest.”
Reasoning: Belton allows the search of a car’s entire interior if the suspect was contacted while still in the vehicle. Belton allows this in order to remove weapons within the reach of the arrestee and prevent concealment or destruction of evidence.
In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. . . The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation.Analysis: This opinion just gets pummeled by both the concurring opinions and the dissent (I’ll address those in a bit).
This decision had to be decided the way it was because otherwise Belton falls to the wayside as useless precedent. The hanging thread waiting for a good yank to unravel Belton has been the fact that well-trained, sane police officers remove people from cars when they believe that the person may be dangerous or might try to destroy evidence. Why do they do this? Because once you remove someone from the vehicle (and most likely handcuff him) it removes the arrestee from any place where he might reach a weapon concealed in the car or destroy any evidence secreted there. The majority even specifically recognizes this:
In some circumstances it may be safer and more effective for officers to conceal their presence from a suspect until he has left his vehicle. Certainly that is a judgment officers should be free to make.That’s code for saying once the suspect has moved to a place where he can no longer reach any weapons or incriminating evidence in the vehicle the officers can arrest him so that they can search his car to get the items he is no longer in a position to use or destroy. It’s damn chilling to see the Supreme Court of the United States urging law enforcement into actions purposefully taken to circumvent our rights.
The Court goes on to claim that a recent occupant test is more precise than the “contact initiation” test urged by the petitioner. It tries to raise the bogeyman that police and courts will have fits trying to figure out when contact was initiated. It just doesn’t work. We all know that contact is easily delineated (it’s when the officer turns on his car’s lights or when he first talks to the guy). It’s very difficult to state the vagueries in a test where the line is drawn at whether the suspect is in or out of the car. On the other hand if you’ve ever seen or read cases trying to decide how long police can impose on a suspect you know how hard it is to determine a reasonable time.
This opinion is a badly reasoned attempt to shore up an undefendable precedent.
How did we get here?
Well, the first step down this path was grounded in reason. Chimel v. California sets out an exception which makes sense. If an officer’s in a room with an arrestee he can search the immediate area in order to make sure there are no weapons or evidence which the arrestee might put hands on to either use or hide/destroy. There are all sorts of scenarios where this exception makes sense. For instance, if a single officer cannot take the arrestee away from the area of the arrest because someone outside is shooting or there is an injured victim and the officer must wait for an ambulance. In these cases it would behoove the officer to search the area near the arrestee to make sure nothing happens while the officer is otherwise occupied.
The problem is that there is no such thing as an “exception.” When police departments learn about “exceptions” which will allow them further latitude policies (official and unofficial) change. So a search of the immediate area becomes the norm, even when police could easily maintain control over the arrestee and remove him from the area. 11 years later the question arises as to whether a search of a car can be done without warrants in Belton. Looking to the regular practice ne exception of searching the area around someone arrested the Court carves out another exception allowing the search of the entire passenger compartment of a car and this proceeds to become the norm. The only problems are that the “exception” isn’t and the reasoning for the search of the car is bad. How often is an officer going to leave the arrestee in his own car where he could reach the weapon or the drugs? The answer to that should be about 0% of the time. So Belton becomes an extension of police powers without any rational explanation as to why we should allow this bypassing of the 4th Amendment. And now comes Thornton which extends Belton to allow car searches when someone was “recently” in the car. The threat? That an arrestee might get back into his car to access a weapon or destroy drugs. In this particular case, the threat that a handcuffed man, locked in the back of a patrol car might somehow break out and run back to his car to accomplish these things. A sensible rule has been stretched until there is no way to rationally justify it.
The Concurrences
Justice O’Connor: Having joined all of the Majority’s opinion except footnote 4 (a dismissal of Scalia’s rationale), Justice O’Connor concludes “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California. That erosion is a direct consequence of Belton's shaky foundation. While the approach Justice Scalia proposes appears to be built on firmer ground, I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit.”
Justice Scalia:
Proposed Standard: (1) Application of Chimel to vehicles should be limited to those circumstances when there is an actual threat to safety or evidence. (2) Searches of vehicles should be limited to those circumstances where there is a reasonable basis to believe that evidence of a crime is in the car (reasonable articulable suspicion).
To begin with Justice Scalia dismembers the majority’s reasoning:
When petitioner's car was searched in this case, he was neither in, nor anywhere near, the passenger compartment of his vehicle. Rather, he was handcuffed and secured in the back of the officer's squad car. The risk that he would nevertheless "grab a weapon or evidentiary ite[m]" from his car was remote in the extreme.Having dismissed all the Belton rationales, Justice Scalia sums up:
. . .
I see three reasons why the search in this case might have been justified to protect officer safety or prevent concealment or destruction of evidence. None ultimately persuades me.
The first is that, despite being handcuffed and secured in the back of a squad car, petitioner might have escaped and retrieved a weapon or evidence from his vehicle--a theory that calls to mind Judge Goldberg's reference to the mythical arrestee "possessed of the skill of Houdini and the strength of Hercules."
. . .
The risk that a suspect handcuffed in the back of a squad car might escape and recover a weapon from his vehicle is surely no greater than the risk that a suspect handcuffed in his residence might escape and recover a weapon from the next room--a danger we held insufficient to justify a search in Chimel.
. . .
The second defense of the search in this case is that, since the officer could have conducted the search at the time of arrest (when the suspect was still near the car), he should not be penalized for having taken the sensible precaution of securing the suspect in the squad car first. . . The weakness of this argument is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government's right; it is an exception--justified by necessity--to a rule that would otherwise render the search unlawful.
. . .
The third defense of the search is that, even though the arrestee posed no risk here, Belton searches in general are reasonable, and the benefits of a bright-line rule justify upholding that small minority of searches that, on their particular facts, are not reasonable. The validity of this argument rests on the accuracy of Belton's claim that the passenger compartment is "in fact generally, even if not inevitably," within the suspect's immediate control. By the United States' own admission, however, "[t]he practice of restraining an arrestee on the scene before searching a car that he just occupied is so prevalent that holding that Belton does not apply in that setting would ... 'largely render Belton a dead letter.'"
The popularity of the practice is not hard to fathom. If Belton entitles an officer to search a vehicle upon arresting the driver despite having taken measures that eliminate any danger, what rational officer would not take those measures? If it was ever true that the passenger compartment is "in fact generally, even if not inevitably," within the arrestee's immediate control at the time of the search it certainly is not true today. As one judge has put it: "[I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find." I agree entirely with that assessment.Having exposed the Majority decision’s failure, Justice Scalia then moves forward with a novel theory which seems to work:
If Belton searches are justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, but simply because the car might contain evidence relevant to the crime for which he was arrested.At this point alarms should be blaring in everybody’s head. The word “assume” should trigger that in the reading of any decision as well as the implicit assumption that “only the guilty” will be effected. The problem here is that the guilty are almost never the only ones effected - they are just the only ones who appeal. One can foresee all sorts of piddly stops wherein the officer does a minor arrest in order to search a suspicious car; remember in Virginia although there is a statute forbidding arrest for many minor offenses it is merely RWR.
. . .
Numerous earlier authorities support this approach, referring to the general interest in gathering evidence related to the crime of arrest with no mention of the more specific interest in preventing its concealment or destruction.
. . .
There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.
There is also the worry that this is an authorization for general warrants. To his credit, Scalia takes this on directly pointing out conflicting precedent as far back as Entick v. Carrington, 19 How. St. Tr. 1029, 1031, 1063-1074 (C. P. 1765). He points to a couple cases which distinguish this precedent but does not elaborate on how they do so: Dillon v. O'Brien, 16 Cox C. C. 245, 250 (Ex. Div. Ire. 1887) & Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 303-304 (1967).
Scalia concludes:
Recasting Belton in these terms would have at least one important practical consequence. In United States v. Robinson, 414 U. S. 218, 235 (1973), we held that authority to search an arrestee's person does not depend on the actual presence of one of Chimel's two rationales in the particular case; rather, the fact of arrest alone justifies the search. That holding stands in contrast to Rabinowitz, where we did not treat the fact of arrest alone as sufficient, but upheld the search only after noting that it was "not general or exploratory for whatever might be turned up" but reflected a reasonable belief that evidence would be found ("This right and duty of search and seizure extend, however, only to articles which furnish evidence against the accused"; seizure authority is limited to relevant evidence; [and an] officer should "consider the nature of the charge" before searching) The two different rules make sense: When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment. But in the context of a general evidence-gathering search, the state interests that might justify any overbreadth are far less compelling. A motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car. I would therefore limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.Analysis: The difficulty with this approach is fairly obvious. Which criminal arrests would justify a search of the interior of a car? Adopting this rule would lead to numerous appeals as courts delineated which arrests fall into this category. However, it should be pretty easy to shake out. Arrests for possession of drugs with intent to distribute, or possession of stolen property could lead to a search. Arrests for driving suspended or obstructing justice (misdemeanor pissing off the cop) cannot lend credence to a search. In other arrests, such as armed robbery, the search might be justified if it was within a reasonable time of the event (say 3 hours).
A more pertinent concern might be the general warrant concern. On a theoretical level it is a greater concern than a search under the Belton/Chimel rationale. However, in its real world application Belton has become an authorization for searches which are the same scope as searches under general warrants. At least the proposed standard provides some sort of curb to the unfettered ability of the officers to search any car they wish.
Dissent:
Justice Stevens
Proposed Rule: Belton should apply to one stopped for arrest while in the car. Chimel should govern police searches of a pedestrian outside his automobile. Probable cause should be required to search a car after the driver has departed from it.
While continuing to support Belton, Stevens indirectly rejects Scalia's option and favors a purer application of constitutional principle for those who have departed their cars:
The bright-line rule crafted in Belton is not needed for cases in which the arrestee is first accosted when he is a pedestrian, because Chimel itself provides all the guidance that is necessary. The only genuine justification for extending Belton to cover such circumstances is the interest in uncovering potentially valuable evidence. In my opinion, that goal must give way to the citizen's constitutionally protected interest in privacy when there is already in place a well-defined rule limiting the permissible scope of a search of an arrested pedestrian. The Chimel rule should provide the same protection to a "recent occupant" of a vehicle as to a recent occupant of a house.Stevens then concludes that the Majority's decision is a vast expansion of police powers:
Unwilling to confine the Belton rule to the narrow class of cases it was designed to address, the Court extends Belton's reach without supplying any guidance for the future application of its swollen rule. We are told that officers may search a vehicle incident to arrest "[s]o long as [the] arrestee is the sort of 'recent occupant' of a vehicle such as petitioner was here." But we are not told how recent is recent, or how close is close, perhaps because in this case "the record is not clear." As the Court cautioned in Belton itself, "[w]hen a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority." Without some limiting principle, I fear that today's decision will contribute to "a massive broadening of the automobile exception, when officers have probable cause to arrest an individual but not to search his car.Analysis: With respect, in one sense, Justice Stevens is wrong. This is not an expansion of the automobile exception, it is an apology for practices already in place. However, he is also right; the danger is that police, armed with this decision, will not stay within the parameters they currently follow but will push the envelope. Stevens theoretical analysis is spot on. There are no two ways about it, prior to this decision the law should have been exactly as per the rule he expounds.
Overall Analysis: Unfortunately, the scope of constitutional rights for those who choose to drive a car (not really a choice in modern society) continues to be shrunk by the Court. Law enforcement will take this decision and push it as far as possible. One can foresee all sorts of excuses for searching a car after longer and longer periods of time: “Once Defendant left his car and went inside, Officer Smith maintained the car in view for the entire 2 hour stakeout until we arrested the Defendant after he had fallen asleep (for officer safety reasons). We then searched the car because it had only been a short time, the Defendant had only gone as far as his house, and car had not been used or approached by any other individuals.” Trial courts and courts appellate will support these expansions.
It's a bad decision and it will lead to bad results.
Of course a good part of this decision's problem rises from the fact that it is almost impossible to defend the carte blanche searches allowed by Belton. Unless willing to recognize the terrible reasoning in Belton and throw it out the Court will never be on solid ground in this area and all decisions will be GIGO.
Assuming Belton remains good law, Justice Stevens provides the most logical and easily followed rule. Nevertheless, there seems to be no real interest in adopting this rule.
Scalia offers a tempting choice. It would get rid of the Belton fallacies and offer a test no more confusing than any other test concerning the 4th Amendment (and probably far less than trying to divine what appellate courts think a reasonable person's reasonable expectation of privacy is – almost always far less than the expectations of people I know). As I would like to see drivers' 4th Amendment rights restored and enforced, it is not my preference. Still it is a siren's song in that it has the potential for adoption by the courts. There are definitely 2 votes here and probably a third in O'Connor. And I can't see the reason for footnote 4 except to keep members of the Majority who were leaning philosophically on board procedurally. So there is still some hope for a standard which would restore some rights to the citizenry. It's not the one I would prefer but anything's better than the standardless shakedown searches which are now allowed.
The Fiction of the Fourth Amendment
From Fourth Amendment.com:
Withdrawal of consent must be specific; defendant's complaint about the length of his detention was not specific enough: United States v Gray (2004, CA8 Ark) 2004 US App Lexis 10621. (Comment: When the cops are rummaging through your car and your belongings, what kind of words would the average person think are required to limit consent? When the cops are throwing your stuff around, what normal human being thinks that he can say "Stop"? Nobody does. This is one of those cases approaching pure fiction on what a citizen has to do to limit consent. I also have to add this: The District Court sustained the search, and I will bet that it was with great reluctance. This case came from my hometown, and the District Judge hearing this case is one of the fairest, sharpest federal judges I have had the pleasure to appear before, and a genuinely good person to have on the federal bench. I am confident he knew that it was fiction, but much of the law of search and seizure is founded on fiction.)
02 June 2004
Police Interrogation
I cannot personally vouch for this as it was not in one of my cases but a speaker in a CLE included it in his notes to be handed out to attendees. Therefore, I think it is most probably true:
(Scene: Interrogation Room, Richmond, VA)
OFFICER: I’ve got eight photographs here. I want you to look at them.
LARRY: Mmm. There is the guy that - I, that’s him, that man, I think.
OFFICER: Which one?
LARRY: That’s the guy.
OFFICER: I want you to look at the picture a little better. You look at them some more.
. . .
OFFICER: I know which one you are looking at. I can tell by the expression on your face. Larry. Which one are you really looking at?
LARRY: I’m really looking at him.
OFFICER: You are not looking at him. Okay? Which one are you really looking at, Larry? Which one are you really looking at, Larry, tell the truth. I will count from here, 1, 2,3.4,5,6,7.8, and give me a number that you are looking at, and be truthful with yourself. Tell me which one you are looking at. Should we put a number underneath each one of them? Which one are you looking at?
LARRY: Number 8.
OFFICER: Larry?
(much later, after Larry has finally identified #7)
OFFICER: Okay. That’s all I’m asking you. And you are positive?’
Source: Transcript introduced in the matter of Commonwealth v. Hawks, Circuit Court, City of Richmond.
Just imagine the discussion the prosecutor had with this officer after his case went down the tubes . . .
(Scene: Interrogation Room, Richmond, VA)
OFFICER: I’ve got eight photographs here. I want you to look at them.
LARRY: Mmm. There is the guy that - I, that’s him, that man, I think.
OFFICER: Which one?
LARRY: That’s the guy.
OFFICER: I want you to look at the picture a little better. You look at them some more.
. . .
OFFICER: I know which one you are looking at. I can tell by the expression on your face. Larry. Which one are you really looking at?
LARRY: I’m really looking at him.
OFFICER: You are not looking at him. Okay? Which one are you really looking at, Larry? Which one are you really looking at, Larry, tell the truth. I will count from here, 1, 2,3.4,5,6,7.8, and give me a number that you are looking at, and be truthful with yourself. Tell me which one you are looking at. Should we put a number underneath each one of them? Which one are you looking at?
LARRY: Number 8.
OFFICER: Larry?
(much later, after Larry has finally identified #7)
OFFICER: Okay. That’s all I’m asking you. And you are positive?’
Source: Transcript introduced in the matter of Commonwealth v. Hawks, Circuit Court, City of Richmond.
Just imagine the discussion the prosecutor had with this officer after his case went down the tubes . . .
01 June 2004
Paradigm Shift
Due to various things constraining my time this blawg is going to become a one post a day site. Hopefully the daily post will be worthwhile.
I know I've put out this offer before, but if there are any practitioners who wish to sign on to put in their two cents worth you are welcome. I'm sure those valiant few who make their way here to read each day's ramblings would appreciate another's views on the practice of criminal law. Defense or prosecutors are welcome. I have only one hard and fast rule: this site is about criminal law - not politics.
I've also enabled the comments. This is a test to see if it does not muck up my blawg like the last time I tried it. In a week or two I'll decide if it's something I will keep or not.
I know I've put out this offer before, but if there are any practitioners who wish to sign on to put in their two cents worth you are welcome. I'm sure those valiant few who make their way here to read each day's ramblings would appreciate another's views on the practice of criminal law. Defense or prosecutors are welcome. I have only one hard and fast rule: this site is about criminal law - not politics.
I've also enabled the comments. This is a test to see if it does not muck up my blawg like the last time I tried it. In a week or two I'll decide if it's something I will keep or not.
Other Voices Around the Web
Southern Appeal offers an opinion on the Federal Supreme Court's decision that a trial court could legitimately think that a kid isolated in small room in a police station and accused of a crime would know he has a right to leave.
I respectfully dissent talks about the difficulties of getting a client out of prison after his conviction was overturned on appeal.
Public Defender Dude:
Criminal Appeal points to a California opinion which forbids the prosecution from arguing poverty as a cause of the crime.
Crime & Federalism asks the question: "I receive federal Stafford loans. Could Congress make it a crime to assault me, on the ground that it is necessary and proper measure to ensure that I remain healthy and thus able to repay their loans?"
Southern Appeal on "Click It Or Ticket."
I respectfully dissent talks about the difficulties of getting a client out of prison after his conviction was overturned on appeal.
Public Defender Dude:
Remember, we are advocates for our clients, but not necessarily for their actions, or against their accusers. There is a fine line that we have to walk in advocating for our clients, and I wince when I hear people go beyond the line. What is the line? Not totally clear.The Volohk Conspiracy points to a case wherein the defense is post traumatic slave syndrome: masters beat slaves, so [an African-American] was justified in beating his son.
. . .
[Regarding a particular rape case], go ahead and say she's lying, point out her inconsistencies, show bad things she may have done, but don't become a sermonizer on the virtues of the people you are in litigation against.
Criminal Appeal points to a California opinion which forbids the prosecution from arguing poverty as a cause of the crime.
Crime & Federalism asks the question: "I receive federal Stafford loans. Could Congress make it a crime to assault me, on the ground that it is necessary and proper measure to ensure that I remain healthy and thus able to repay their loans?"
Southern Appeal on "Click It Or Ticket."
Another Site
Scrivener's Error appears to be well written and if nothing else, I really like the way the blawg is laid out. It's worth a look.
First Among Equals & Miranda
Kenneth Starr on Miranda (after it had been upheld in Dickerson v. United States):
As the paragraph points out Miranda also derives from and feeds into the US myth. We have a strong belief that fairness is fundamental to our system, even for those targeted by the system. One might trace this to the ingrained teaching that “all men are created equal” or perhaps to Jacksonian Democracy or maybe the speech we all have heard throughout our lives stating that the government is “by the people, of the people, for the people.” I don’t know the exact source (none cited seem to fit exactly) but it is definitely a part of our ethos. Wherever it comes from the idea that our society requires police to tell those detained that they don’t have to talk and that the police will respect that silence is the living expression of the myth of fairness. Those in power are forced to play fair even with those who are the least in society.
However, the assertion that everyone would have rallied to save Miranda is somewhat pollyanna-ish. Without federal imposition of Miranda in Virginia it becomes dead letter law. The Legislature might even pass a statute requiring officers to give a similar warning but it would be relegated to the realm of a legislative suggestion. As I’ve pointed out before, the Virginia courts refuse to exclude evidence when they are not forced to by federal mandate. Those parts of the law or Virginia Constitution which promise rights not protected under the federal constitution are rights without remedies (RWR). You are just in tough luck if an officer purposefully violates a RWR but does not go so far as to violate the federal constitution.
But, you say, the legislators could add teeth to the statute and require evidence gained in contravention of it be excluded. And boy wouldn’t that next election be fun as their opponents pummeled them with how they were soft on crime because they had voted to keep evidence out which would convict murderers and rapists. No, our legislators don’t even have the guts to do a proper reform on our grand larceny statute; there’s no way they would put teeth into such a statute.
But, isn’t that the point? Shouldn’t we find a way to keep this evidence in rather than suppressing it? After all, if it’s being argued about in court it is because the evidence tends to show guilt. THERE IS NO PUNISHMENT WHICH CAN DRIVE POLICY LIKE EXCLUSION. Law enforcement agencies will develop policies and train to follow them if cases could be lost due to constitutional violations. Police officers interested in their career will strive to adhere to these polices.
Of course there are other proffered remedies but most of them are shams meant to try and give cover to courts which want to not exclude evidence. The person convicted of a crime could sue the officer over the unconstitutionally/illegally gained evidence (if he can get past sovereign immunity). Police investigatory boards could punish the officer who broke that unsolved homicide by reprimanding him for violating the constitution/law. Civilian investigatory boards could do the same thing - if they aren’t stacked with retired police or other law-and-order types. A convicted criminal could have his sentence reduced by a few years because the evidence was improperly obtained (serve 27 years instead of 30 - whoopie!).
This is not to say that there are not other possible remedies outside of exclusion which could potentially work. There is one in particular which you don’t hear bantered about much precisely because it has teeth much like exclusion. This would be allowing conviction but forbidding any punishment to rise from it (including show causes from prior convictions). If argument and the exclusion of punishment were done pretrial, this could be a strong deterent. If done in the sentencing hearing it has far less teeth than exclusion because of the prejudicial evidence which has entered through the trial. Judges are people too; if you shove enough disgusting photos in front of them or have victims on the stand crying they will become far more likely to stretch for a reason to get around the constitutional violation. This is why prosecutors in suppression hearings are always talking as specifically as they can about the 10 lbs of cocaine in the back seat and the sawed off shotgun under the driver’s seat - they want to make sure that the judge gives pause before he throws evidence out.
Back to the original point. Since Miranda is here to stay most of the above is conjecture (at least as to confessions). It is a decision which, although it has little basis in the constitution actual, carries out the American ideal. As such it is a keystone in our system of justice.
Krauthammer summed up the anomaly in his postmortem: "Scalia is right that Miranda 'is a milestone of judicial overreaching.' And yet Miranda, born illegitimate and living on illogic, has turned into one of the glories of American democracy." Why? Because despite its judicial illegitimacy, Miranda's existence says something powerful about the values of the country. "When people around the world go to the movies, they see a bad guy who has just murdered a nun, impaled a policeman and blown up a school, collared by Eastwood or Stallone or Tommy Lee Jones. What are the first words out of the good guy's mouth? 'You have the right to remain silent.' The viewer has to wonder what kind of political paradise America really is. People seeing this in Belgrade and Harare and Kuala Lumpur, places where the innocent get whacked and beaten and tortured at the whim of the authorities, can only be awestruck at a country that treats even its monsters with such delicacy."I wholeheartedly agree with the first paragraph. Miranda doesn’t really have any constitutional moorings; it is common law engaged in and defended under the rubric of constitutional interpretation. That said, it is a wonderful decision all around. Rather than set out a disastorous, amorphous standard like 4th Amendment “reasonable expectation of privacy” it sets out a bright line rule. Its effectiveness is evident if one goes to court and observes the number of times that searches under the 4th Amendment standard are challenged and the fewer confessions which are challenged after Miranda.
The Court no doubt knew this: Everyone - the president, Congress, the states, and law-enforcement professionals - would have promptly rallied around the warnings. Few if any elected officials, much less law-enforcement officials, would have said, "We are now directing that all Miranda warning cards be appropriately dispensed with for recycling."
Of course, overruling Miranda would have been the best result. The appropriate roles of the three branches of government would have been preserved, yet the nation's commitment to safeguarding basic constitutional rights would have been vindicated. Under the most likely scenario, with Miranda overruled as a principle of constitutional law, representative institutions of government would have come to a particular view and practice as to what is right and fair in the administration of the criminal justice system. At the same time, if the police erred, then some other remedy would have been triggered rather than allowing dangerous felons like Ernesto Miranda to go free.
But the Court, dominated by the moderates and joined by the chief justice, was unwilling to change course. Stability and structural integrity, rather than fundamental principles, carried the day.
As the paragraph points out Miranda also derives from and feeds into the US myth. We have a strong belief that fairness is fundamental to our system, even for those targeted by the system. One might trace this to the ingrained teaching that “all men are created equal” or perhaps to Jacksonian Democracy or maybe the speech we all have heard throughout our lives stating that the government is “by the people, of the people, for the people.” I don’t know the exact source (none cited seem to fit exactly) but it is definitely a part of our ethos. Wherever it comes from the idea that our society requires police to tell those detained that they don’t have to talk and that the police will respect that silence is the living expression of the myth of fairness. Those in power are forced to play fair even with those who are the least in society.
However, the assertion that everyone would have rallied to save Miranda is somewhat pollyanna-ish. Without federal imposition of Miranda in Virginia it becomes dead letter law. The Legislature might even pass a statute requiring officers to give a similar warning but it would be relegated to the realm of a legislative suggestion. As I’ve pointed out before, the Virginia courts refuse to exclude evidence when they are not forced to by federal mandate. Those parts of the law or Virginia Constitution which promise rights not protected under the federal constitution are rights without remedies (RWR). You are just in tough luck if an officer purposefully violates a RWR but does not go so far as to violate the federal constitution.
But, you say, the legislators could add teeth to the statute and require evidence gained in contravention of it be excluded. And boy wouldn’t that next election be fun as their opponents pummeled them with how they were soft on crime because they had voted to keep evidence out which would convict murderers and rapists. No, our legislators don’t even have the guts to do a proper reform on our grand larceny statute; there’s no way they would put teeth into such a statute.
But, isn’t that the point? Shouldn’t we find a way to keep this evidence in rather than suppressing it? After all, if it’s being argued about in court it is because the evidence tends to show guilt. THERE IS NO PUNISHMENT WHICH CAN DRIVE POLICY LIKE EXCLUSION. Law enforcement agencies will develop policies and train to follow them if cases could be lost due to constitutional violations. Police officers interested in their career will strive to adhere to these polices.
Of course there are other proffered remedies but most of them are shams meant to try and give cover to courts which want to not exclude evidence. The person convicted of a crime could sue the officer over the unconstitutionally/illegally gained evidence (if he can get past sovereign immunity). Police investigatory boards could punish the officer who broke that unsolved homicide by reprimanding him for violating the constitution/law. Civilian investigatory boards could do the same thing - if they aren’t stacked with retired police or other law-and-order types. A convicted criminal could have his sentence reduced by a few years because the evidence was improperly obtained (serve 27 years instead of 30 - whoopie!).
This is not to say that there are not other possible remedies outside of exclusion which could potentially work. There is one in particular which you don’t hear bantered about much precisely because it has teeth much like exclusion. This would be allowing conviction but forbidding any punishment to rise from it (including show causes from prior convictions). If argument and the exclusion of punishment were done pretrial, this could be a strong deterent. If done in the sentencing hearing it has far less teeth than exclusion because of the prejudicial evidence which has entered through the trial. Judges are people too; if you shove enough disgusting photos in front of them or have victims on the stand crying they will become far more likely to stretch for a reason to get around the constitutional violation. This is why prosecutors in suppression hearings are always talking as specifically as they can about the 10 lbs of cocaine in the back seat and the sawed off shotgun under the driver’s seat - they want to make sure that the judge gives pause before he throws evidence out.
Back to the original point. Since Miranda is here to stay most of the above is conjecture (at least as to confessions). It is a decision which, although it has little basis in the constitution actual, carries out the American ideal. As such it is a keystone in our system of justice.
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