29 December 2005
Echoes on Indigent Defense Failures
Via SWVALaw, I found these two editorials which echo Esther's description of the problem with failure to fund indigent defense in Virginia.
28 December 2005
Indigent Defense Underpayment in Virginia
I don't know what Virginia needs to budget to bring its indigent defense to a decent level but when the Chief Justice asks for 25 million and the governor only alots 3.7 million you sense that something's out of kilter.
27 December 2005
The Libyan Supreme Court Overturns Death Penalties
The Libyan Supreme Court overturned the death sentence of five Bulgarian nurses and a Palestinian doctor who had been convicted of infecting 426 Libyan children with HIV virus.
24 December 2005
How Quickly Things Turn
Remember the student who got the visit from federal agents for getting Mao's Little Red Book? He was lying.
And you know what, this article's almost as bad as the first one. We still don't get the guy's name. We don't get any information on why he was lying. Political reasons? Trying to suck up to his leftish professors? Late paper? We don't get any information about if the school plans to do anything to the student or to the professors who reported without anything further than the kid's say so.
Still, the original was worse. If the reporters had done some precursory investigation they would have found enough flaws to make them suspicious. And how do run that story without interviewing the original source?
If one were cynical he might conclude that the reporter and his editor wanted their cake and to eat it too. If you put out the story incomplete then you guarantee at least one follow-up (either Kid Lies! or Confirmed! Rights Trampled!).
Thanks to TWM for the pointer.
And you know what, this article's almost as bad as the first one. We still don't get the guy's name. We don't get any information on why he was lying. Political reasons? Trying to suck up to his leftish professors? Late paper? We don't get any information about if the school plans to do anything to the student or to the professors who reported without anything further than the kid's say so.
Still, the original was worse. If the reporters had done some precursory investigation they would have found enough flaws to make them suspicious. And how do run that story without interviewing the original source?
If one were cynical he might conclude that the reporter and his editor wanted their cake and to eat it too. If you put out the story incomplete then you guarantee at least one follow-up (either Kid Lies! or Confirmed! Rights Trampled!).
Thanks to TWM for the pointer.
23 December 2005
Judicial Mafia
You know, I may whine every once in a while here about how judges in Virginia are tougher on the defense than prosecutors. I may even point to certain cases and wonder how far a judge would actually have to go to get in trouble in Virginia.
However, nowhere in my worst nightmares could I even conceive a Virginia judge engaging in blackmail of a newspaper in writing. Make sure you click through to the actual letter because, read as a whole, it's even worse than Joel's quotes make it seem.
However, nowhere in my worst nightmares could I even conceive a Virginia judge engaging in blackmail of a newspaper in writing. Make sure you click through to the actual letter because, read as a whole, it's even worse than Joel's quotes make it seem.
21 December 2005
The Problem With Unpublished Opinions
I'm not a big believer in unpublished opinions. First of all, in an age of West and Lexis there is no such thing as an unpublished opinion anymore. There are only opinions which are accorded weight and opinions which are not.
In a perfect world this should break down to "published" opinions - which establish precedent - and "unpublished" opinions - which are merely advisory. Unfortunately, the world's not perfect and the effect of an unpublished opinion seems to often depend upon who's relying upon it.
It's sometimes hard for me to get a judge to follow the words of a statute or follow established precedent. I handed one judge a published case and pointed out a precedent favorable to my client. I can't prove this and may be absolutely wrong, but it looked to me like the judge looked to see which court of appeals judges had participated in the opinion; he then looked up at me and said, "Mr. Lammers, I don't think this is the law in Virginia." Of course, that's an extreme case. However, it sets the scene for you as to what I'm facing when I present an unpublished opinion:
Anyway, if I had my druthers unpublished opinions would say something like this:
In a perfect world this should break down to "published" opinions - which establish precedent - and "unpublished" opinions - which are merely advisory. Unfortunately, the world's not perfect and the effect of an unpublished opinion seems to often depend upon who's relying upon it.
It's sometimes hard for me to get a judge to follow the words of a statute or follow established precedent. I handed one judge a published case and pointed out a precedent favorable to my client. I can't prove this and may be absolutely wrong, but it looked to me like the judge looked to see which court of appeals judges had participated in the opinion; he then looked up at me and said, "Mr. Lammers, I don't think this is the law in Virginia." Of course, that's an extreme case. However, it sets the scene for you as to what I'm facing when I present an unpublished opinion:
Me: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.Compare with a prosecution presentation:
Prosecutor: Your Honor, that doesn't carry any weight.
Judge: Mr. Lammers, I'm afraid Mr. Prosecutor is correct. This case does not have precedential value. Additionally, the case at bar can be distinguished from Smith because in Smith the defendant was wearing a yellow shirt and in this case your client is alleged to have worn a green shirt. Motion to strike over ruled.
Prosecutor: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.Does it happen that way every time? Nope, just often enough that every defense attorney knows the scenarios by heart.
Me: Your Honor, that case is - at best - advisory. It doesn't carry any weight.
Judge: Mr. Lammers, this case has exactly the same fact pattern as the allegations against your client. I think this is the way that the court of appeals would apply the law. Motion to strike denied.
Anyway, if I had my druthers unpublished opinions would say something like this:
[Unpublished] Jones v. Commonwealth - Applying McGillicuty v. Fairfax, the answer to appellant's question is: No.If more elaboration is required the opinion ought to be published so that it will have it's due weight.
Prosecutor Suicide?
The FBI is investigating whether a federal prosecutor stabbed himself over 30 times to commit suicide.
Crime Trends
Across the nation crime is down yet again. However, in Utah it's up. Identity theft remains the nation's fastest-growing financial crime.
Mod Prosecution
When I first saw this I must admit I thought it was petty. Then I read the part where in addition to the mods the seller put 77 games on the Xbox. Idiots.
20 December 2005
Don't Borrow Commie Books
A college student ordered, through an inter-library system, the Little Red Book. Why? He was writing a paper on communism for his class on fascism and totalitarianism.
Next thing he knows, federal agents show up at his door.
Next thing he knows, federal agents show up at his door.
19 December 2005
I'm so confused . . .
OK, Tom takes an inmate's side & the Virginia Court of Appeals, en banc, overturns a conviction without even a dissent.
I get sick, sleep for three days, and everything changes. I feel like I'm in one of those Star Trek reverse universes.
I get sick, sleep for three days, and everything changes. I feel like I'm in one of those Star Trek reverse universes.
Defamation of Character & a Prosecutor
A prosecutor got an award for defamation of character because a newspaper published a letter to the editor from someone the prosecutor was prosecuting.
This isn't my area of expertise, but I'd bet this goes away on appeal. It seems to me that a newspaper provides a forum for an assertion of the citizen who sends the letter. Since the assertion wasn't by an employee of the paper the action would seem to lie with the person making the assertion; of course, the person who made that assertion is probably litigation proof.
link via SWVaLaw
This isn't my area of expertise, but I'd bet this goes away on appeal. It seems to me that a newspaper provides a forum for an assertion of the citizen who sends the letter. Since the assertion wasn't by an employee of the paper the action would seem to lie with the person making the assertion; of course, the person who made that assertion is probably litigation proof.
link via SWVaLaw
France to Outlaw Open Source Software
At the end of this week, France will pass "emergency" (non-debated) legislation which will make open source (free) software illegal. It will also allow scanning of all emails for attachment contents. And they want to make it illegal to copy CD's to a computer. (First story on Mobuzz.TV)
Light Posting: Ill
If I figure out who gave me this I will find some way to make him/her pay.
Blech. Anyway, I may post a couple of things today but don't expect much.
Blech. Anyway, I may post a couple of things today but don't expect much.
18 December 2005
16 December 2005
One for Tom
Sometimes you just see a post that somebody else should read. I saw this post and realized I had to make sure Tom saw it.
Suing the Wedding
In Spain the music industry is suing weddings for using music without paying fees. (2d story and final comment)
15 December 2005
14 December 2005
Go to Leheigh, Learn a Trade?
I wonder if graduating from an elite school gets you automatic membership in the Thieve's Guild?
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