24 September 2005
This Post has nothing to do with criminal law
Unless taking pleasure in my former firm's bad press is a crime. I plead gulity. Take a look at the link to see an example of Big Law arrogance.
23 September 2005
| You are a Social Liberal (63% permissive) and an... Economic Conservative (68% permissive) You are best described as a: You exhibit a very well-developed sense of Right and Wrong and believe in economic fairness. loc: (49, 68) modscore: (41, 38) raw: (3835)
Link: The Politics Test on Ok Cupid |
22 September 2005
Keep an Eye on This Case
I think this whole Abramoff case might well be a witch hunt, and is obviously a proxy battle against Tom DeLay, but I think this case could be very interesting, and bears watching.
21 September 2005
And By the Way
Ken, for a guy who said his posting would become light, you sure have been prolific. Not that that's a bad thing. I'll have some thoughts on Kozlowski, Saddam and some other things over the next few days.
Mea Culpa, I'm Back
I owe y'all an apology. No sooner had I made my intro post but that I got called to trial. Federal Court here in Philadelphia. Client was indicted, along with several others, on 42 counts of bank fraud, RICO violations and other stuff. We slog along for a while. Then, through an odd series of circumstances, the AUSA offers a deal. A sweetheart deal. Like, no time, which, given that our guy was looking at mucho years, was good. Now, here's the point of the post. This has never happened to me before. Part of the deal is, the client has to allocute. He stands up in court on plea day,and, when the judge asks him to allocute, he turns to me and says, no kidding, "Do I have to cop to the stuff that wasn't in the indictment?" Just as I was thinking about how long it would take to pluck the guys eyes out with my pen, the AUSA, to her credit, suggested that perhaps we ought to take a short break. The judge was not amused. Nor was my cardiologist. Long story short, case over. My posts ought to become somewhat regular, as they say, and I apologize for disappearing without an explanation.
How to Not Impress the Apellate Judges
Y'know, I know I'm critical of some court rulings I've seen (just a few) and I might use some harsh words here but I just cannot picture putting these three titles on the sections of my appellate brief:
I. The District Court Altered Substantive Law In Concluding That The Class Meets Rule 23(a)'s Commonality And Typicality Requirements.I've got to agree with S. Cotus that someone needs to learn a couple new verbs.
II. The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Manageable
III. The District Court Altered Substantive Law By Failing To Recognize That Monetary Relief Plainly Predominates And Concluding That The Class Meets The Requirements of Rule 23(b)(2)
Winning the Speedy Trial Argument
Sometimes even defense attorneys have a good day.
This case has been going on forever. In fact, my client is one of the first ten charged with felonies moved to the circuit court at the beginning of 2005. The case was then continued once by the prosecutor. When we came back on the trial date both I and the co-defendant's attorney raised speedy trial right (over 5 months between preliminary hearing and trial by Va. Code sec. 243). The prosecutor argued that we couldn't argue this because we hadn't filed a motion 7 days prior to trial. The judge agrees. My client is found guilty of attempted robbery and use of a firearm in a felony. The co-defendant is found not guilty because complaining witness cannot ID him.
Fast forward to the sentencing hearing. The judge gives my client 6 years. I plan to appeal and stand to ask for an appeal bond. I tell the judge I have a good faith belief that the speedy trial ruling will be overturned because the law had just changed to what the judge had declared it to be and it was not that way when he ruled. The judge starts talking about reopening the argument. The senior prosecutor who had been pushing this case is not in the courtroom so the prosecutor who was assigned to that courtroom that day was basically sitting there trying to figure out what the heck the judge and I were talking about. Eventually, the judge converts my motion for an appeal bond into a motion to rehear the speedy trial argument and orders me to brief it.
Fast forward to the next hearing. I have given this brief to the new prosecutor (who somehow got stuck with this case now that it looks like it's going down the tubes). The prosecutor asks the judge for time to file an answer and to order transcripts of the continuance so that if the judge was wrong about the need to file a motion pretrial they can check to see if I objected to the continuance (necessary to preserve speedy trial rights). The judge continues the case saying something to the effect that he's not going to rule right now but it looks like I may have the prosecutor on the law. Then we all go around in circles talking about who is going to order and pay for the transcripts. When we leave both I and the prosecutor believe that the judge is going to order the transcripts.
Fast forward to the next hearing. The prosecutor has filed an answering brief which argues that the prosecution begins with the swearing in of the first witness and that exceeding the speedy trial requirement is a defect in the institution of the prosecution which must be raised prior to trial. It's a good try but the judge agrees with me that "institution of the prosecution" means a flaw in the indictment, presentment, or grand jury and finds in my client's favor. However, all that means is that I now have the right to argue the motion to dismiss for failure to abide by the speedy trial statute. It's clear that the trial took place after 5 months had passed but I had to object at the continuance in order to preserve the speedy trial rights for my client. I can't prove I did because the transcripts were never ordered. The clerk had thought the prosecutor was going to order them. I argue that the case should end right now (I think the words I actually used were, "This dog needs to be put down") but the judge continues it for a week to get the transcripts. This time the prosecutor is tasked with ordering the transcripts.
One day ago: The transcript of the continuance comes in. I've been concerned about this because my file indicates the continuance was a prosecution continuance and I didn't note specifically that I objected. Objectively, I know that I always object to a prosecution continuance because a defense attorney must always object to a prosecution continuance to preserve his client's speedy trial rights. However, I cannot remember having done so (a generic ten minute hearing 6 months ago - figure the odds of remembering) and it's worrying me. I pick up my copy of the transcript. Reading through it, I get to the point where the prosecutor moved for a continuance because an officer-witness cannot be located. Then I read these golden words:
Today 8:45: We're back in court and the prosecutor, showing some class, concedes that I objected and that the trial date set outside the 5 months was not at my behest. The judge meticulously sets out what has happened in this case for the record, dismisses the charges per the speedy trial statute, and orders my client back to the jail to be released today. Mom and girlfriend are in the audience and break down crying. I walk back to the lockup area with my client who is absolutely glowing. Handshakes and a quick hug. Then I go to the hall outside the courtroom where Mom and Girlfriend are so happy they are bouncing. Handshake from Girlfriend; Mom hugs me in tears.
Then it's over and I have to run off to do things in other courts. However, for the rest of the day I am bulletproof. Everything goes my clients' way and it's just an all around great day. It'll probably even out tomorrow but today was just great.
--------------------
BTW: For those who will want to say how terrible this "technicality" result is, let me make 3 points. First, this was a hard fought case. Personally, I believe the story my client has stuck with throughout the trial. He's a nice kid but not bright enough to lie convincingly (and more importantly, consistently). IMO, Client should have only been convicted of brandishing, a class 1 misdemeanor. It was a serious enough brandishing that he probably should have gotten the max (12 month sentence - 6 months actual jail time). Instead, he spent a year and a month in jail.
Second, when the prosecutor and the judge were insisting on seeing the transcript of the continuance motion they were looking for a technicality in order to not apply the statute. The 5 months had clearly passed; they were looking to see if there was any way they could get around the statute.
Third, I'm in such a good mood today your comments just won't penetrate.
This case has been going on forever. In fact, my client is one of the first ten charged with felonies moved to the circuit court at the beginning of 2005. The case was then continued once by the prosecutor. When we came back on the trial date both I and the co-defendant's attorney raised speedy trial right (over 5 months between preliminary hearing and trial by Va. Code sec. 243). The prosecutor argued that we couldn't argue this because we hadn't filed a motion 7 days prior to trial. The judge agrees. My client is found guilty of attempted robbery and use of a firearm in a felony. The co-defendant is found not guilty because complaining witness cannot ID him.
Fast forward to the sentencing hearing. The judge gives my client 6 years. I plan to appeal and stand to ask for an appeal bond. I tell the judge I have a good faith belief that the speedy trial ruling will be overturned because the law had just changed to what the judge had declared it to be and it was not that way when he ruled. The judge starts talking about reopening the argument. The senior prosecutor who had been pushing this case is not in the courtroom so the prosecutor who was assigned to that courtroom that day was basically sitting there trying to figure out what the heck the judge and I were talking about. Eventually, the judge converts my motion for an appeal bond into a motion to rehear the speedy trial argument and orders me to brief it.
Fast forward to the next hearing. I have given this brief to the new prosecutor (who somehow got stuck with this case now that it looks like it's going down the tubes). The prosecutor asks the judge for time to file an answer and to order transcripts of the continuance so that if the judge was wrong about the need to file a motion pretrial they can check to see if I objected to the continuance (necessary to preserve speedy trial rights). The judge continues the case saying something to the effect that he's not going to rule right now but it looks like I may have the prosecutor on the law. Then we all go around in circles talking about who is going to order and pay for the transcripts. When we leave both I and the prosecutor believe that the judge is going to order the transcripts.
Fast forward to the next hearing. The prosecutor has filed an answering brief which argues that the prosecution begins with the swearing in of the first witness and that exceeding the speedy trial requirement is a defect in the institution of the prosecution which must be raised prior to trial. It's a good try but the judge agrees with me that "institution of the prosecution" means a flaw in the indictment, presentment, or grand jury and finds in my client's favor. However, all that means is that I now have the right to argue the motion to dismiss for failure to abide by the speedy trial statute. It's clear that the trial took place after 5 months had passed but I had to object at the continuance in order to preserve the speedy trial rights for my client. I can't prove I did because the transcripts were never ordered. The clerk had thought the prosecutor was going to order them. I argue that the case should end right now (I think the words I actually used were, "This dog needs to be put down") but the judge continues it for a week to get the transcripts. This time the prosecutor is tasked with ordering the transcripts.
One day ago: The transcript of the continuance comes in. I've been concerned about this because my file indicates the continuance was a prosecution continuance and I didn't note specifically that I objected. Objectively, I know that I always object to a prosecution continuance because a defense attorney must always object to a prosecution continuance to preserve his client's speedy trial rights. However, I cannot remember having done so (a generic ten minute hearing 6 months ago - figure the odds of remembering) and it's worrying me. I pick up my copy of the transcript. Reading through it, I get to the point where the prosecutor moved for a continuance because an officer-witness cannot be located. Then I read these golden words:
THE COURT: Mr. Lammers?I almost whoop for joy right there in the clerk's office.
MR. LAMMERS: Your Honor, obviously, for speedy trial issues, I have to object. I'm not going to jump up and down on the table, but I'd ask that my objection be noted.
. . . .
THE COURT: All right. I not the objections of each of the defendants, but I will grant the motion.
Today 8:45: We're back in court and the prosecutor, showing some class, concedes that I objected and that the trial date set outside the 5 months was not at my behest. The judge meticulously sets out what has happened in this case for the record, dismisses the charges per the speedy trial statute, and orders my client back to the jail to be released today. Mom and girlfriend are in the audience and break down crying. I walk back to the lockup area with my client who is absolutely glowing. Handshakes and a quick hug. Then I go to the hall outside the courtroom where Mom and Girlfriend are so happy they are bouncing. Handshake from Girlfriend; Mom hugs me in tears.
Then it's over and I have to run off to do things in other courts. However, for the rest of the day I am bulletproof. Everything goes my clients' way and it's just an all around great day. It'll probably even out tomorrow but today was just great.
--------------------
BTW: For those who will want to say how terrible this "technicality" result is, let me make 3 points. First, this was a hard fought case. Personally, I believe the story my client has stuck with throughout the trial. He's a nice kid but not bright enough to lie convincingly (and more importantly, consistently). IMO, Client should have only been convicted of brandishing, a class 1 misdemeanor. It was a serious enough brandishing that he probably should have gotten the max (12 month sentence - 6 months actual jail time). Instead, he spent a year and a month in jail.
Second, when the prosecutor and the judge were insisting on seeing the transcript of the continuance motion they were looking for a technicality in order to not apply the statute. The 5 months had clearly passed; they were looking to see if there was any way they could get around the statute.
Third, I'm in such a good mood today your comments just won't penetrate.
20 September 2005
Gotti Mistrial
Mob trials always have the most interesting headlines:
Like father, like son: 'Junior' Gotti dodges conviction
Like father, like son: 'Junior' Gotti dodges conviction
The younger Gotti pulled his own narrow escape on Tuesday when he was acquitted on a securities fraud charge, and a mistrial was declared on more serious racketeering counts including a botched and bloody kidnapping of a radio show host.Ya Gotti believe they're all lying rats, lawyer sez
Jeffrey Lichtman called the gangsters murderous "maniacs" - and derided Sliwa as a "money-grubbing liar addicted to publicity" as he delivered closing arguments in Gotti's kidnapping and racketeering trial.JUNIOR'S LAST JAB
"These witnesses lied to you and they lied to you repeatedly."
Defense lawyer Jeffrey Lichtman claimed Gotti renounced the mob and defied his father when he pleaded guilty to unrelated racketeering charges in April 1999 — and then harkened back to the secretly taped words of the late John "Dapper Don" Gotti.'JUNIOR' GOTTI CHICKENS OUT OF TESTIFYING
. . . .
Prosecutors normally get the final word at trial, but Manhattan Federal Judge Shira Scheindlin gave Lichtman the rare chance to respond in light of Gotti's unusual defense, which requires him to actively prove he renounced the Mafia.
"Your honor, if I may. I'm going to follow my head and not my heart, and I'm going to opt out on taking the witness stand," Gotti, rising to his feet after a 40-minute huddle with his lawyers, told Manhattan federal Judge Shira Scheindlin.COURTS TREATED JACKO BETTER
the feds, for 14 months in 2003 and 2004, both in the lawyers room and visiting room in Raybrook prison, secretly taped Junior.Another Wiseguy Sings At Junior Gotti Trial
Despite the fact that those tapes were made by the feds for the expressed purpose of nailing Junior, they have successfully blocked the defense from using them.
. . . .
"The thing is," said sister Angel, "the jury will never hear John angrily saying he no more wanted anything to do with the life and will believe all the stuff the informants are saying about him."
"John was very, very good to me," DiLeonardo, 50, said while testifying for the government against Gotti at a mob conspiracy trial. "I love John."We just don't get that kind of coverage down here in Virginia.
19 September 2005
LexCast 8: Is Criminal Practice What I Expected?
Well, for this LexCast I tried something different. I filmed it at my apartment. Various pets wander in and out while I'm filming and one cat gets very insistent about being let out (you'll hear him meowing and, when that didn't work, see where he actually started bumping the tripod for the camera).
Anyway, it was an experiment. I like the look of it (mostly) but the sound is terrible. Next time I'll have to bring my clip on mike home and use it.
The video is here. The audio is available over at Odeo which can be gotten to by clicking LexRadio in the column to the left.
Anyway, it was an experiment. I like the look of it (mostly) but the sound is terrible. Next time I'll have to bring my clip on mike home and use it.
The video is here. The audio is available over at Odeo which can be gotten to by clicking LexRadio in the column to the left.
18 September 2005
Dogs, Dogs, & More Dogs
Apparently, the government must be having problems proving the reliability of its dogs because it has now gotten the 9th Circuit to declare that the 4th Amendment doesn't apply when people cross the border. The government was using dogs to provide the requisite indicia of illegal activity but pushed to have the 4th entirely invalidated.
Y'know, I remember the courts having the ability to interpret the constitution but I just can't find the grant of authority to abrogate it.
Y'know, I remember the courts having the ability to interpret the constitution but I just can't find the grant of authority to abrogate it.
The FBI's View on Virginia Law
From The Bureau. Background: A former FBI Director had an assistant who refused to change her car's tags from Texas to Virginia despite having been in Virginia for 5 years. Such an act would have resulted in disciplinary action for anyone else in the Bureau but she claimed a waiver from Virginia.
[The] director of investigations in Richmond said, "There is no such thing as a waiver. The Virginia statute doesn't give anyone the authority to waive anything. Even Jesus Christ doesn't have the authority to waive the laws of the Commonwealth of Virginia."
[The] director of investigations in Richmond said, "There is no such thing as a waiver. The Virginia statute doesn't give anyone the authority to waive anything. Even Jesus Christ doesn't have the authority to waive the laws of the Commonwealth of Virginia."
16 September 2005
UW-M's Provost has recommended firing 2 professors for felonies but "UW is required to show evidence that a crime is connected to an employee's job before it can legally fire the employee."
Clients Came Today
It's a miracle!
I had my open office hours and two people came. Of course, in order to make that happen I had to set actual appointments and double-book 3, 3:30, & 4. Six appointments, 2 show.
I had my open office hours and two people came. Of course, in order to make that happen I had to set actual appointments and double-book 3, 3:30, & 4. Six appointments, 2 show.
15 September 2005
7th Circuit / Habeas / Priest Conviction
The 7th Circuit has granted a habeas petition in a priest pedophilia case on grounds that counsel was ineffective.
Differences in the Law
Texas has a law which allows you to travel with a firearm as long as it is not in plain view. In Virginia, if you do not travel with the firearm in plain view you must have a concealed carry permit. Without such a permit you are violating the concealed weapons statute. In cases I have handled this has included pistols in the glove compartment, in a closed box under the seat (unloaded), and in bag in a mesh holder at the back of an extended cab truck. You are basically required to have the firearm sitting on the passenger seat, in plain sight, at all times. Personally, I think the only place you can have a firearm out of sight in your car and not get convicted is if it is in the trunk (and even then the back seat had best not fold down so that the trunk actually connects to the cab).
The way I've usually seen this handled is that the defendant has his charge dropped if he agrees to give up his firearm.
The way I've usually seen this handled is that the defendant has his charge dropped if he agrees to give up his firearm.
You Just Cannot Make This Stuff Up
What happens when the judge interrupts you and your client's conversation at the side of the courtroom to ask you to speak more quietly?
Well, here's what happens if Client speaks before you can.
via Skelly
Well, here's what happens if Client speaks before you can.
via Skelly
No CrimLaw Questions for Roberts
Douglas Berman isn't too happy that there haven't been a lot of questions asked about criminal law matters.
14 September 2005
Guam: Police Recruits
The police cadets from Guam just don't look as chipper as the ones from New Zealand. Of course, it's hard to look chipper when you are rolling across the ground.
Limerick Crime
There was an old man from Nantucket . . .
Wait, that's not what they mean by a Limerick crime gang member?
Dern. I thought it was a criminal like the Riddler.
Wait, that's not what they mean by a Limerick crime gang member?
Dern. I thought it was a criminal like the Riddler.
Ireland: Comparative Crime
I think this is comparing crime rates in Ireland with those throughout Europe.
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