Murder Mystery...

This local murder investigation has taken on a life of its own and even gone national with the key players making the rounds on talk T.V.

I must admit, however, this case does have it all: A beautiful young teenage girl missing; her 38 year old boyfriend/prime-suspect arrested on child porn charges; a body found... sounds like an episode of C.S.I., but its all too real.

Click here for the full/developing story.

From Ann Althouse:

Harriet Miers is associated with no theory of constitutional interpretation. She appears to have never shown any interest in constitutional analysis at all.

Who is this Harriet Miers, this practicing lawyer, who presumes to go on the Court and write the opinions we [professors] must spend our lives reading and analyzing?
. . . [S]he is just an attorney. The very idea!

Thinking about it that way has begun to thaw my opposition to Miers. . . . Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.

Cool! If we take that a step further we should try to get someone on the court who spends all his time in court actually trying cases.

Wait, that's me!!!



And here's my campaign poster:



Contact your Senator today. Remember it's advise and consent. All we have to do is convince 51 Senators that the only consent they will give is if the President takes their advice and nominates me.

[addendum] For those of ya'll coming here via Orin's direction: I, perhaps to the detriment of my candidacy, have a paper trail on the issue of Reasonable Articulable Suspicion of a Criminal Activity.

Posts (in order): 1 - 2 - 3 - 4 - 5 - 6

AAaaarrrrggggg!!!! I put together a new lawcast reviewing a new show on the WB "Just Legal" and was putting the final touches on it by checking some stuff about Don Johnson (one of the stars) and found out it's been cancelled.

To Change the Jury

Ethan Leib, of Prawfsblawg fame, has put out a work in progress in which he proposes supermajorities rather than unanimous decisions for convictions and simple majorities for acquittals.

I haven't yet read the actual article but must say my gut instinct is to oppose this sort of change.

(A) There's no problem to solve here. Both from my personal experience and discussions with other attorneys, I believe there are very few hung juries. Juries almost always come to a unanimous conclusion.

(B) The objective of the system is to put the onus on the government. Not requiring the government to prove its case to the satisfaction of 12 citizens is a step back from the burden of proof. In effect, it gives the government extra strikes from the jury pool. If the required number for conviction is 8 the opinion of the last 4 is irrelevant. The government gets the benefit of the 8 jurors it would prefer present (the convictors) and gets to ignore the remaining 4, basically discharging them from their duties because they do not agree to convict.

But wait, you say, the defense gets this same benefit! In effect it gets 5 extra strikes in cases wherein the jury votes to acquit (7 being the number needed for a majority out of 12). Yep. But there's no lessened burden of proof because the defendant has no burden of proof. And, let's be honest here, how often is the holdout minority a couple of convictors when the rest are for acquittal?

Additionally, as a matter of judicial efficiency, there's a good argument for simple majority acquittal: A simple majority for acquittal would benefit a system which requires the government to prove its case by keeping the government from retrying weak cases.

Anyway, I suggest that ya'll go download and read the article. For all I know it blows my reservations out of the water. I'll try to comment on the article as a whole when I get a chance to read it.

Welcome a New Blawg

Indigent Journal is a new blawg out there about criminal defense. Currently, he's going nuts over an article published in The Champion (the National Association of Criminal Defense Lawyer's magazine) which besmirches those who remain in a public defender's office too long. Apparently the author reasoned that those who remain in the government's employ as PD's eventually become too close to the prosecutors and judges and, as a direct consequence of being too familiar, do not take enough cases to trial.

My Take: I am no longer a member of the NACDL. I was at one time but all I got out of it was the nicely put together glossy magazine - the same magazine which Indigent Journal is upset about. And it used to upset me the same way on the same sorts of issues. Nothing which any of us did as indigent defense attorneys was good enough. Sometimes I wondered if they'd even be satisfied if I did this:

A&B of Children

I don't care how badly you want that picture of a movie star, you can't attack kids to get to her.

Video of Police Violence

From New Orleans

SoCal Law New Lawcast.

"A Supreme Court nomination free podcast."

Off Point: Captain Capitalism

WARNING: Not work, wife, or kid friendly.

Feddie On NPR

Steve Dillard was interviewed on an NPR segment about the latest nominee to the Supreme Court.

Jailed for Being Creepy

You'll have to listen to panda mating habits talk for about thirty seconds but then you can find out how a wierdo can get thrown in jail in Scotland for engaging in free speech. Here's the same thing in Spanish.

BTW: I really like mobuzz, probably because it's humorous and the announcerettes are pretty hot. Karina Stenquist, who does the English version, is hilarious; I got hooked when I ran across her squidcast. Iria Gallardo does the Spanish broadcast; I don't speak Spanish but somehow I still got sucked in (I think it's because I'm male).

A Day in the Life of a Criminal Defense Attorney

8 a.m. - I roll into the courthouse for my first case of the day. It's going to be a good start to the day because I know it's a slam dunk win. The case is called and my client is brought from lock-up. He's being show caused for not paying restitution in 2001. The district court only kept him on probation until 2003. The prosecutor's office asked for a capias to arrest him for not paying the restitution in 2004, a year and nine days after the court had lost jurisdiction. He was arrested in another jurisdiction this year and the capias was served on him.

Before the case starts I make a motion to dismiss, pointing all this out to the judge. The judge disagrees, stating that Client was supposed to pay the restitution in four months, didn't pay, and therefore the court has jurisdiction. I point out that the court had limited its jurisdiction and that this time had run a year and nine days before anybody did anything about it = the court doesn't have jurisdiction. "But Mr. Lammers, he didn't pay the restitution within the four months so the court retains jurisdiction." The judge and I go round and round about this and I get no where. As a last ditch effort I try pointing out that under the judge's interpretation the court would retain jurisdiction for all time (obviously not proper). At this point the prosecutor joins the argument comparing the unpaid restitution to an unserved warrant for someone not coming to court. I point out that that makes no sense but the judge isn't having any of it. He denies my motion and finds my client guilty.

Then comes the sentence. The judge revokes my client's suspended time and resuspends all of it except 30 days. He then sets as the sole condition of the remaining suspended time that Client pay the restitution and puts Client on probation for three years. Just little perturbed, I have to bite down hard on my tongue to keep from saying "Your Honor you've just proven my point. If you actually believe that in matters of restitution the court retains infinite jurisdiction you wouldn't have set a time limit for probation based solely on payment of restitution." I ask for an appeal bond and the judge sets it in the amount of the restitution.

Then I go back into lockup and talk with my client. I am not happy and want to appeal this to the circuit court so badly I can taste it. Client has served more than the 30 days and will get out today if he accepts the judge's decision. Anyone out there want to guess whether I got to appeal the case?

8:45 - I go over to the next courtroom for my next case. It's a show cause (for failure to complete community service and failure to pay restitution) and a misdemeanor failure to appear in court. We come out and plead guilty. I explain that client believes that he had done all of his community service but that the last six hours weren't credited to him because he signed in but forgot to sign out. I point out to the judge that Client has already served over a month and that he has a job ready when he gets out so that he can start paying the restitution. I suggest that the judge give him a total of a month in jail. The judge states that he believes Client is not taking any of this seriously and revokes Client's suspended time and resuspends all but six months. "Mr. Lammers, I may look favorably upon a motion to reconsider if the restitution is paid."

9:30 - I go to the circuit court for a de novo appeal of a trespassing case; it's a citizen complaint which means warrant did not issue on the sworn statement of an officer but on the word of a citizen. In general district court my client was convicted of trespassing but the judge low-balled the punishment, taking Client's case under advisement for a year (to be dismissed if no further trouble). Client insists he is innocent and demands an appeal. The first appeal date he missed court and the judge issued a show cause. When I get up to the courtroom I find out that Client has been arrested that morning when he arrived in court; when they were unable to successfully serve the summons for the show cause the judge changed it to a capias. I give the prosecutor a chance to back out before trial but he declines.

The case gets called. Client pleads not guilty to both the trespass and the show cause for failure to appear. The prosecutor calls his only witness. She's about 50+ and slowly hobbles up to the witness stand, leaning heavily on her cane. She wheezes a little, coughs every so often, and seems to be trying to look pitiful. She tells how Client used to date her daughter but doesn't anymore and that he's now banned from her property. She tries to get off point to raise all sorts of other things but after a couple objections she stays on point (with some herding by the prosecutor). Then she says that she was awake in the early morning hours of 15 January 2005 and saw my client drive his car into her driveway. At the door, she saw my client, he saw her, and he pulled out and drove away. The prosecutor asks her what time this happened and she stated 3:44. The prosecutor tries to see if there is any play in this but she holds fast. She saw the time on the kitchen clock when she went to wake others in the house, she noted the time on a tape recording she made to turn over to the police (the officer called refused to go swear a warrant), and the clock is never wrong about the time. She also states that she was the only one to see Client.

Then I cross her. She admits that she was 150 feet from the vehicle she saw it. She admits that the headlights were on. Finally, she clarifies that the event actually occurred the night of the 15th and morning of the 16th (meaning it actually occurred on 16 January 2005 at 3:44 a.m.). At first she repeats that it happened on the 15th "because we went to the magistrate on the 16th." I ask her if she went to the magistrate when she woke up the next day and she says "Yes" and agrees that this meant the event actually occurred on the 16th.

Next comes my turn to call witnesses. I call my client's former boss. She testifies that my client was working as a pizza driver and worked a double shift on the night of the 15-16th. She has records (which I move into evidence) showing that he clocked out at 3:54 on the 16th.

The prosecutor crosses and it comes out that in order to clock in Client had a number and code to enter into the computer but that only a manager could clock him out after he finished work and turned in all his money.

With that, I close my case. The prosecutor waives his opening argument. As I stand up to close the judge asks me about the failure to appear. I start to proffer that Client had mixed up a couple court dates but the judge starts asking indepth questions so Client has to go the stand and testify that he had a date for a speeding ticket and a date for this court, he went to the wrong courthouse, and he was really upset when he found out he'd missed the last date.

Then I get to argue. I point out that client was at work and couldn't have clocked out without his manager, that there was no way he could have driven from his job in the middle of Richmond to the complaining witness' suburban house in less than 30-45 minutes (if he sped), and that he got off work after the alleged incident had occurred. The prosecutor gets up and starts hammering away at the fact that the manager of the pizza place wasn't in court to say he saw Client at work; all we had were records which could have been entered by anyone. I object to the prosecution's insistence that the defense produce the manager: "Your Honor, it's the prosecution's job to prove guilt." The prosecutor then mops the floor with me for a couple minutes, pointing out that an alibi is an affirmative defense. He starts goes on and on about how his office had no notice of this defense; I start to object (they had notice because it was the same defense relied upon in general district court) but I let it go because the argument doesn't look like it's getting any traction.

The the judge rules: "Mr. Prosecutor, I tend to agree with you." At this point my head pops up. My client has won; if Client were going to lose the judge would have started out by telling Client what a great job his defense attorney had done. "I think there is a strong suspicion, no, a strong probability that Client did what Ms. Smith says he did. However, as we all know, that's not the standard. Therefore, I find Client not guilty. I also find him not guilty of the failure to appear in court. His story is suspicious but nothing rebutted it." He then warns Client not to go to that property ever. Client's thrilled but still has to go over to the jail for processing (because the capias was served on him) before he can be released for the day.

And so ends another Day in the Life.

Around the Web

1) A judge comments on the judicial disciplinary process.

2) Professor Groot was one of the best professors at W&L. I learned the common law definitions of several crimes because of him. Not because I was in his class, mind you, but because my roomate was and he was so terrified of Groot that he would spend hours drilling on the common law crimes until all of us could recite the elements in our sleep.

3) Imagine if you found out the girl you just bought a drink for is that client who hasn't returned your calls or come to see you. Now imagine that the charge you've been assigned to represent her for is underage drinking.

4) Can your client's other lawyer be as annoying as his relatives?

5) Traffic cameras cause more crashes. No surprise there. Traffic cameras are a scam to make the city a lot of money. Sadly, no surprise there either.

6) What's the fun in making the stripper stay so far away? I mean, isn't this unduly prejudicial to short-sighted people? That's got to violate the 14th Amendment.

Miers on Crime & Punishment

SL&P has a copy of a short article Miers wrote about criminal law.

Open Thread

OK, I haven't cleared this with Ken, but, let's try it. Harriet Miers is unqualified to sit on the Supreme Court. Discuss ...

Bet on Delay

If I had to bet, I'd bet on The Hammer. The indictment is flimsy, the prosecutor's got a history, and the defendant has retained one of the finest defense lawyers in the country, Dick DeGuerrin (who, incidentally, licked the same prosecutor about 10 years ago when Kay Bailey Hutchison was the victim of a similar politically motivated indictment). Yep, bet on The Hammer here and give the points.

Moments You Wish You Could Have Back

I'm at a show cause hearing for a client who has been reported by probation for not reporting in and not completing community service. It quickly becomes apparent that my adversary for the hearing is not the prosecutor, it's the judge. I call my client's mother and the prosecutor declines to cross her; the judge then spends 15 minutes going back and forth with her either (a) trying to discredit her testimony, or (b) trying to convince her that her daughter deserves to go to jail (not sure which exactly). He does the same thing when Client testifies.

Then comes argument. The prosecutor waives opening and I stand up and point out that much of the problem stems from the fact that Client lives at the far end of the next county over, has no phone, and cannot drive. I then point out that if we could get things transferred over to that county's probation office Client would be able to complete his responsibilities because Mom can drive him to something in the county. I also point out that Client got a good job a couple months back and has voluntarily entered drug treatment (despite the fact that she's never had a drug charge).

At this point the judge interrupts me and says, "That's all good counsel, but you need to tell me a reason I shouldn't send him to jail." Then I go off. I point out forcefully that this is a kid who is trying to get his life together and she'll lose her job if she's incarcerated and that we need to help her along the path. I ended with, " . . . and this Court would do well to help her along the path to recovery rather than just warehousing her at taxpayers' expense."

It was incredibly cathartic and satisfying and when I sat back down at the table I start kicking myself because I know it wasn't helpful for my client. The judge gave her 60 days in jail. I doubt I could have done anything to change how much time Client got (I think the judge had decided before we even started the hearing). Still, I'd like to have that minute or so back in order to try to - at the very least - make that argument a tad bit more tactfully.

Shocked! Shocked, I am. Blonde Justice isn't paying for her clients' bonds out of her own pocket.

That's cold.

Next Week, the Jaguars.

Yep, if you cannot develop a dark sense of humor you probably shouldn't practice criminal defense. The three options are laugh, cry, or go insane. I shudder to think about what some of the people sitting next to a table full of defense attorneys think about the ghoulish stuff which passes for humor among us.

Getting the Courtesy Pass & Still Complaining

Some Background:

I-81 is a death trap in Virginia. It is winding and hilly and filled with 18 wheelers and all the traffic travels at speeds beyond any reason. While I was in law school in Lexington (right off I-81), you would see reports of deaths almost every day and one time there was a wreck which literally piled up miles of cars.
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§ 46.2-862 - Reckless (Speed) - A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth . . . (iv) in excess of eighty miles per hour regardless of the applicable maximum speed limit.

[note] It is an unwritten law in a great portion of Virginia that anyone traveling over 90 mph gets jail time.
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§ 46.2-852. Reckless driving; general rule - Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

[note] If you make another car do something it would not have done because of your inappropriate act it usually falls under this statute.
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§ 46.2-817. Eluding

A. Any person who, having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal or who attempts to escape or elude such law-enforcement officer, is guilty of a Class 3 misdemeanor. It shall be an affirmative defense to a charge of a violation of this subsection if the defendant shows he reasonably believed he was being pursued by a person other than a law-enforcement officer.

B. Any person who, having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of the law-enforcement vehicle or endanger a person is guilty of a Class 6 felony. It shall be an affirmative defense to a charge of a violation of this subsection if the defendant shows he reasonably believed he was being pursued by a person other than a law-enforcement officer.

[note] If you are driving recklessly and refuse to pull over it is usually charged as the felony.
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§ 18.2-460. Obstructing justice.

A. If any person without just cause knowingly obstructs . . . any law-enforcement officer in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such . . .law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.

B. If any person, by threats or force, knowingly attempts to intimidate or impede . . . any law-enforcement officer, lawfully engaged in his duties as such . . . he shall be deemed to be guilty of a Class 1 misdemeanor.
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Now the Facts:

New Jersey deputies, returning from New Orleans, were traveling up I-81. They were in a convoy, in the passing lane, traveling 95 mph, using their lights, and forcing people off the road. A local deputy tries to pull them over. Some stop; others continue down the road. The stop was initially hostile but eventually the local deputy extends the courtesy and lets them go with a warning. The New Jersey sheriff calls and rips the Virginia deputy (apparently forgetting that nowadays calls can be taped):

"If you think that that's not a disgrace, you should take that badge off your shirt and throw it in the garbage," Speziale said. "This is unacceptable, and I'll tell you what, I hope I get the opportunity to show you the same courtesy up here in New Jersey."

Speziale told Roane that "law enforcement is all about supporting each other" and said he was reporting the Augusta County stop to the National Sheriffs' Association.

Speziale ended the call after cutting short Roane's attempt to detail the incident. "I don't talk to deputies," the New Jersey sheriff said.

Rumor has it that this stop was worse than it is portrayed but I cannot confirm that. Rumor also has it that Virginia law enforcement is being warned to respond en masse in these situations.

Hopefully, this is an anomaly. Another convoy of 80 New York law enforcement cars was stopped on the same day but no fuss has been made about that.

I have spoken to some law enforcement types about this and gotten pretty much the same reaction which was summed up by a trooper today who finished the conversation by shrugging his shoulders and saying, "Yankees."

LexCast

This week's LexCast discusses three opinions of the Virginia Supreme Court about criminal law.

1. The dismissal of cases because of a rule of the Virginia Supreme Court.

2. Can one attempt to do evil things to a minor when there is no minor involved?

3. Is an indigent client irretrievably prejudiced when his attorney doesn't object to the fact that he is going to trial in his jail suit?

Here's the video.

You can listen to the audio alone by clicking on LexRadio in the left hand column and going to Odeo.

The audio is better this week but it's still wonky. I think at least part of the problem might be that the clip on mike is mono. Hopefully, I'll come up with a fix for the sound soon.

BTW, the technical problems were fixed with Odeo and last week's LexRadio is up as well.

If you sit real still in the MRI machine it can measure whether you are nervous or if your brain is multi-tasking. This is being hailed as indicating whether someone is lying or not.

Anticipatory Search Warrants

Here's the first step down a rather massive slippery slope (at least if the supreme court validates this dodge of the constitution). It may not seem so bad as framed but just where do you draw the line in this sort of thing? And believe me, if it's allowed it will be pushed as far as possible and there will be courts which will apologize for the expansions.

I leave the parade of horribles to your imagination because it's 9 p.m. and I'm going home now.

Political Hardball in the Courts

I saw this first back on Injustice Anywhere and avoided talking about it for a while because of my general aversion to putting political matters on this blog. However, there comes a point when something is just too humorous . . .

The Kentucky AG and Governor are of different parties. There's been an open state of war between the two of them with the AG indicting members of the Governor's administration for making hiring decisions based upon -GASP!!!- political reasons.

The Governor decided this was not a situation calling for a nuanced approach and he nuked the AG. He pardoned everyone in his administration whom the AG had indicted. Then, called before the grand jury himself, he took the 5th.

But wait, there's more - An employee of the Transportation Department testified against the administration. Her supervisor recommended her for a bonus specifically because she testified against the administration. The acting transportation secretary not only refused to do that, he told her: "if it were 20 years ago I probably would have come back there and socked you in the mouth."

The AG has now re-indicted the acting transportation secretary for not rewarding the employee for testifying against the administration.

You just cannot make things like that up.

Article 1, Article 2, Article 3

Pacers Paroled

The Pacers who went into the stands to fight with the fans are going to get community service.

Why?

So you don't want fly to Missouri to meet the guy you've been IM'ing for the last few months (perhaps it will be hard to explain why you're not a 22 year old blonde physics major who loves to cook and wants a large family). Don't fly to meet him. Don't IM him anymore. Don't take his phone calls. All legal - if somewhat obnoxious - options.

However calling to tell him you have been "kidnapped, raped, stabbed and left in a ditch along Interstate 29 near Kansas City International Airport" is not a good plan. It's especially not a good plan when he calls the Missouri police and they call the Kentucky police who find you sitting in your home safe and sound.

Homeland Security is Dictating How Police Communicate

Homeland Security is dictating that local law enforcement abandon the old numerical codes in favor of plain language because police forces use different codes.

Whence the authority?

Jury Duty Scam

From an email my father sent me about social engineering scams:

Here's a new twist scammers are using to commit identity theft: the jury duty scam. Here's how it works:

The scammer calls claiming to work for the local court and claims you've failed to report for jury duty. He tells you that a warrant has been issued for your arrest.

The victim will often rightly claim they never received the jury duty notification. The scammer then asks the victim for confidential information for "verification" purposes.

Specifically, the scammer asks for the victim's Social Security number, birth date, and sometimes even for credit card numbers and other private information -- exactly what the scammer needs to commit identity theft.

So far, this jury duty scam has been reported in Michigan, Ohio, Texas, Arizona, Illinois, Pennsylvania, Minnesota, Oregon and Washington state.

I don't know if it's for real or not but I can see it happening. Of course, if anybody called me to say I had a warrant and then started asking for my credit card number I might be a wee bit suspicious.

Next week, the Texans.