13 October 2009
The Oxycontin Express
Watch this video. We have this problem here as well. When I was in Richmond the drugs were cocaine and heroin. Out here the problems are oxycontin, percocets, xanax, lortabs, suboxone, et al. Pain clinics, out of State doctors and pharmacies, mail order drugs - most of it starts out with veneer of legality. Watch the Kentucky mountains part of the video and that's similar - although smaller in scale - to what our drug issues are.
12 October 2009
Probable Cause is Probable Cause - Except When It Isn't
Everyone knows of my skepticism over the magically constitutional dog-sniff which isn't a search per Illinois v. Caballes. Nevertheless, now that the premise has become law, it has to be applied.
So, a car is pulled over and has four passengers. While the stop is going on a dog is run past the vehicle. The dog alerts. So, per Caballes the officers have constitutionally valid probable cause to search the contents of the vehicle. They have the people exit and search the vehicle, finding nothing. Can the officers search the people who were in the car when the dog alerted? After all, probable cause was for contraband to be in the vehicle and the people were in the vehicle; if an officer took a purse out of the car and laid it on the ground probable cause wouldn't dissipate and the search would still be valid. Thus the search of the individuals should be valid.
Except it isn't.
In Whitehead v. Commonwealth, the Virginia Supreme Court ruled that the standard for searching people is higher than probable cause. After all, probable cause was established by the dog sniff which covered the entire area of the car and Defendant was in the car at the time. Ipso facto, there is probable cause to search Defendant (if probable cause allows the officer to search a purse in the car he should be able to search the defendant). Nevertheless, the Virginia Supreme Court has decided that for a search of a person in the car the formula is: probable cause + a particularized something more.
In order to get there the Court has to stretch its reasoning across several different cases. Here are the cases it goes through:
Whence came the Virginia Supreme Court's reasoning? Well, it's a pretty close rationale to Di Re before it was limited by Pringle. Before the limitation, it was a fair reading of Di Re to say that it stood for the idea that being in a car in the presence of contraband or illegal activity does not mean that probable cause adheres to all individuals in the car. This is almost exactly the standard adopted by the Virginia Supreme Court. However, it is not the constitutional standard post Pringle.
Ybarra & El-Amin, neither car cases, really aren't germane to much except that the Virginia Supreme Court seems to be trying to use them as ammo in its attempt to turn back the clock and claim the old standard from Di Re. They bolster the Court's attempt to characterize this case as a "companions" case rather than a "car" case. However, it's clear that constitutional jurisprudence has set different rules for those in a car than for those an open shop or walking in public. The cases just are not on point.
To be fair, the Court was dealing with a terrible decision from the Court of Appeals which basically said that there was probable cause to search Defendant because he was the last place that hadn't been searched and that he couldn't raise the search of the other occupants, even if their searches might not have been as based in probable cause as his. Either all the occupants were searched constitutionally or they were not. You can't break the constitution until you find the guilty party and then state that it wasn't unconstitutional for this guy. As well, the Court does point out that there are opinions out there from other appellate courts which do not reach the same conclusion as it has. Maybe it's trying to get the USSC's attention by pointing out a split it ought to address.
Anyway, now we have to face the practical applications of this decision. I don't know if they'll be much. Now, as one officer searches the car another officer can run the dog past the individuals who have exited the car. As long as there is no extension to the time of the detention, this second, non-search sniff should not have any constitutional implications and furnish all the particularized suspicion needed.
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1 And before you yell at me about this, go read the article I linked to in the first sentence of this post. I do not believe this is logical per se, I am just stating that it is the USSC's logic per Caballes and we are obligated to follow it.
So, a car is pulled over and has four passengers. While the stop is going on a dog is run past the vehicle. The dog alerts. So, per Caballes the officers have constitutionally valid probable cause to search the contents of the vehicle. They have the people exit and search the vehicle, finding nothing. Can the officers search the people who were in the car when the dog alerted? After all, probable cause was for contraband to be in the vehicle and the people were in the vehicle; if an officer took a purse out of the car and laid it on the ground probable cause wouldn't dissipate and the search would still be valid. Thus the search of the individuals should be valid.
Except it isn't.
In Whitehead v. Commonwealth, the Virginia Supreme Court ruled that the standard for searching people is higher than probable cause. After all, probable cause was established by the dog sniff which covered the entire area of the car and Defendant was in the car at the time. Ipso facto, there is probable cause to search Defendant (if probable cause allows the officer to search a purse in the car he should be able to search the defendant). Nevertheless, the Virginia Supreme Court has decided that for a search of a person in the car the formula is: probable cause + a particularized something more.
In order to get there the Court has to stretch its reasoning across several different cases. Here are the cases it goes through:
U.S. v. Di Re, 1948, USSC: (Severely limited by Pringle) Mere presence in the car where a crime has been committed is not probable cause if one of the other persons in the car has been specifically identified as the law breaker.Of all the above, Pringle seems to be the case closest to point. It's not exactly the same because in Pringle the contraband was found first and then Pringle was arrested without particularized proof that it was his. However, since Caballes has declared dogs infallible, the same probable cause as the finding of drugs in Pringle is established by the alert of the dog.1 Thus, the defendant in Whitehead has probable cause clearly established against him, just as the defendant in Pringle did.
Ybarra v. Illinois, 1979, USSC: When police get a search warrant for a merchant's place of business the search warrant does not extend to whichever random customers happen to be in the place of business when the warrant is served.
Maryland v. Pringle, 2003, USSC: If contraband is inside a car an officer can reasonably infer that there is probable cause that all the occupants of the car are involved in the illegal activity because of the relatively small size of the automobile.
El-Amin v. Commonwealth, 2005, Va.SCt.: There is reasonable articulable suspicion for a Terry pat down of members of a group, in the evening in a high crime area, if a member of the group is found to have a weapon.
Whence came the Virginia Supreme Court's reasoning? Well, it's a pretty close rationale to Di Re before it was limited by Pringle. Before the limitation, it was a fair reading of Di Re to say that it stood for the idea that being in a car in the presence of contraband or illegal activity does not mean that probable cause adheres to all individuals in the car. This is almost exactly the standard adopted by the Virginia Supreme Court. However, it is not the constitutional standard post Pringle.
Ybarra & El-Amin, neither car cases, really aren't germane to much except that the Virginia Supreme Court seems to be trying to use them as ammo in its attempt to turn back the clock and claim the old standard from Di Re. They bolster the Court's attempt to characterize this case as a "companions" case rather than a "car" case. However, it's clear that constitutional jurisprudence has set different rules for those in a car than for those an open shop or walking in public. The cases just are not on point.
To be fair, the Court was dealing with a terrible decision from the Court of Appeals which basically said that there was probable cause to search Defendant because he was the last place that hadn't been searched and that he couldn't raise the search of the other occupants, even if their searches might not have been as based in probable cause as his. Either all the occupants were searched constitutionally or they were not. You can't break the constitution until you find the guilty party and then state that it wasn't unconstitutional for this guy. As well, the Court does point out that there are opinions out there from other appellate courts which do not reach the same conclusion as it has. Maybe it's trying to get the USSC's attention by pointing out a split it ought to address.
Anyway, now we have to face the practical applications of this decision. I don't know if they'll be much. Now, as one officer searches the car another officer can run the dog past the individuals who have exited the car. As long as there is no extension to the time of the detention, this second, non-search sniff should not have any constitutional implications and furnish all the particularized suspicion needed.
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1 And before you yell at me about this, go read the article I linked to in the first sentence of this post. I do not believe this is logical per se, I am just stating that it is the USSC's logic per Caballes and we are obligated to follow it.
08 October 2009
Power, Persuasion, & Plea Agreements
So, I'm reading thru Simple Justice and I ran across this post regarding plea agreements. I'm not particularly concerned over whether academics have an accurate view of actual practice, but I did suss out some points which I thought it would be interesting to address.
On the other hand, if somehow all defendants, and their attorneys, decided that from a date certain there would be no more plea bargains and that they were all going to plead not guilty to everything it would benefit a number of defendants in the future. Of course, the first group to do this would have a lot of people who would get longer sentences than they would have otherwise, but, assuming the government could not increase its resource expenditure to handle all the cases, the government would eventually have to bring fewer charges or drop more. This would benefit those with lesser charges. However, those with more serious charges are going to see the time they spend in prison increase.
As a practical matter, you'll never see all the defendants act in concert. In the short run it is to most of their self interests to take the plea offer. As well, defense counsel isn't charged with defending the best interest of the group, he's charged with defending the interests of the single defendant in his care. He cannot ethically recommend Defendant take one for the team and spend a year in jail for snipe hunting (instead of the 9 months offered) just so that someone else might not have to be charged or convicted of this crime in the future.
However, this isn't reality. Judges are coerced into plea agreements because they need to keep their dockets moving. Prosecutors are coerced into plea agreements because it is problematic to gather all the witnesses and all the evidence for each and every single case they are prosecuting, concern about witnesses/evidence, speedy trial concerns, &cetera. The defense is coerced into plea agreements because of the probable worse consequences if the agreement is not entered into. Sure, no one's free will is overborne, but it isn't exactly as though everyone gets there without some force within the judicial system pushing him in that direction.
Just as true is the fact that plea agreements aren't desirable for all involved. They turn the esteemed, legally brilliant judge into a clerk for the prosecutor and defense attorney who are basically just filing their agreement with him. The prosecutor generally offers less than she really thinks is the optimal punishment for the defendant. And what defendant desires his liberty interests to be imposed upon?
Yet, plea agreements aren't going away anytime soon. They are the oil which keeps the judicial system flowing and unless someone comes up with something better they're going to be with us for a long time.
(1) Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions.I don't see how refusing to settle would get a defendant "lenient sanctions", except for a not guilty finding. In general, one would expect a pragmatic prosecutor to offer a better deal than Defendant could expect to get even if Defendant just pled straight guilty and got a disposition from the judge. I'm not saying Prosecutor will give up the farm, and she won't offer a punishment which is insufficient, but she'll offer something at least a little less than what the judge will probably hand down. Of course, there will be exceptions to this - charges which cannot garner an offer, judges who are too lenient for a prosecutor to conscientiously make a better offer, the rare unreasonable prosecutor - but this would be the general rule.
On the other hand, if somehow all defendants, and their attorneys, decided that from a date certain there would be no more plea bargains and that they were all going to plead not guilty to everything it would benefit a number of defendants in the future. Of course, the first group to do this would have a lot of people who would get longer sentences than they would have otherwise, but, assuming the government could not increase its resource expenditure to handle all the cases, the government would eventually have to bring fewer charges or drop more. This would benefit those with lesser charges. However, those with more serious charges are going to see the time they spend in prison increase.
As a practical matter, you'll never see all the defendants act in concert. In the short run it is to most of their self interests to take the plea offer. As well, defense counsel isn't charged with defending the best interest of the group, he's charged with defending the interests of the single defendant in his care. He cannot ethically recommend Defendant take one for the team and spend a year in jail for snipe hunting (instead of the 9 months offered) just so that someone else might not have to be charged or convicted of this crime in the future.
(2) The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.Yes, this is partially true. However, that's an incomplete picture. A good portion of the power in a prosecutor's hands comes from the fact that a large percentage of defendants are provably guilty. They've been found by an officer in possession of contraband. They shoplifted while store security was filming them. They confessed to an investigator. Let's say that these "easy proves" are 60%. In those cases the only real thing which is going on is a determination of what the disposition shall be. If Defendant and Counsel know Defendant has a 99% chance of being found guilty and getting 5 years from the judge, that is what gives the prosecutor a lot of power to plea bargain. The prosecutor has the power to offer anything up to a 5 year sentence. Then come the "probable proves"; let's say these are another 25% of the cases. In those everyone perceives an 80% chance of conviction and therefore Prosecutor's plea bargaining power is less; perhaps her power only rises to the level of the ability to offer up to a 4 years sentence. The scale continues to slide as the perceived ability of the prosecutor to prove a case lessens. Mind you, the plea bargaining power of a prosecutor never completely ceases to be; the mere existence of the ability under the law to offer a plea agreement assures the prosecutor will always have some power in plea negotiations. In a murder case which both sides perceive to have a 5% chance of conviction an offer to reduce to felony battery and probation (rather than potential life) is still something the defense is going to have to consider.
(3) [T]he institution of plea bargains may not improve the well-being of defendants.Since when is the purpose of anything in the courthouse meant to "improve the well-being of defendants?" Assuming Defendant's interest in court is that of self liberty, the only way he can achieve this in totality is to fight all the way to the end and be found not guilty. In a plea negotiation situation Defendant isn't trying to improve his well-being, he's trying to mitigate the harm society is going to inflict upon his liberty interest in order to further what it has decided are important ends.
(4) Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.Were plea bargains ever entered "voluntarily?" Were they ever desirable for all involved? Let's be serious here. In a perfect universe every lawyer, prosecutor and defense, would have one case and all the time and resources in the world. Judges would be assigned one case at a time and have no docket pressure. Jurors would be bright, attentive, and take their duties seriously. There would be no reason for even a plea at the beginning of trial; we'd just assume a not guilty plea and have at it. In such a system defendants would probably benefit in that more of them would probably be found not guilty. The citizens would also benefit in that there would be no need for the government to discount sentences; those convicted would be segregated from society for as long as they optimally should be.
However, this isn't reality. Judges are coerced into plea agreements because they need to keep their dockets moving. Prosecutors are coerced into plea agreements because it is problematic to gather all the witnesses and all the evidence for each and every single case they are prosecuting, concern about witnesses/evidence, speedy trial concerns, &cetera. The defense is coerced into plea agreements because of the probable worse consequences if the agreement is not entered into. Sure, no one's free will is overborne, but it isn't exactly as though everyone gets there without some force within the judicial system pushing him in that direction.
Just as true is the fact that plea agreements aren't desirable for all involved. They turn the esteemed, legally brilliant judge into a clerk for the prosecutor and defense attorney who are basically just filing their agreement with him. The prosecutor generally offers less than she really thinks is the optimal punishment for the defendant. And what defendant desires his liberty interests to be imposed upon?
Yet, plea agreements aren't going away anytime soon. They are the oil which keeps the judicial system flowing and unless someone comes up with something better they're going to be with us for a long time.
05 October 2009
Prosecution:
And So It's Been Three Years:
Blogging
About three years back I switched from being a defense attorney into the role of a prosecutor. As the third year passes I thought that it might be interesting to look back upon those three years.
I used to wonder, back when I was a defense attorney, why there were so few prosecutors blogging. Now I understand. There are some considerations which are obvious enough, but some of which really hadn't occurred to me.
Of course, critiquing fellow workers and/or the Boss in a blog is just stupid and should be avoided. Anybody who doesn't disagree with a fellow worker once in a while is a saint or a rug, but if a conflict isn't major enough to leave the job a prosecutor should either work to resolve it in shop or just let it be. Nothing good can come of putting it in a blog.
Politics is also obviously a concern. As a deputy prosecutor you have a duty not to cause trouble for the Boss. This means watching out for the sensitivities of voters, other office holders, powerful people in the community, LEO's, judges, news agencies and anyone else who might impact the Boss and/or his office. So, if 5% of the people in the prosecutor's city believe the color Blue is God's color and refuse to swear an oath which does not in end "so help the Blue God" the prosecutor really can't comment on it for fear of offending a significant voting block.
Additionally, there is the concern that anything a prosecutor blogs about a case may be used against her either in trial or in an appeal or habeas. It's obvious that anyone who blogs about a trial while it's in progress is inviting trouble because of its potential to cause a mistrial (e.g.: if a juror stumbles upon it) or give away trial strategy to the other side. As a prosecutor she also has the problem of not knowing if a case is finished. A defendant can file post trial motions, or appeals, or habeases, or even a petition for a writ of actual innocence (in Virginia). Blogging about an important case coming out of the office the prosecutor works in invites these things, particularly in an era when people are overreacting to jurors text messaging or twittering. Sure, the motions filed based on a blog post would, almost always, be spurious, but a prosecutor just shouldn't go out of his way to provide ammo for a convicted offender.
One thing which makes it hard to blog is that a surprising amount of the interesting stuff which happens in a prosecutor's work is prior to court. You vet an interesting indictment before it goes to the grand jury. You help a deputy get a search warrant. Prosecutors and officers discuss what charges to file against someone. You discuss with officers ongoing investigations or the local drug trade connections. A lot of this is truly interesting and has some amazing stories attached. In fact, all sorts of interesting stories pop up precharge. Yet, a prosecutor can't blog about this stuff for both ethical and practical reasons.
Personally, I've been lucky in that both my elected bosses knew about my blog ahead of time and agreed to allow me to continue to blog. I've tried to honor their trust by not doing anything too stupid which might cause the Boss trouble. As anyone who has followed this blog for a while knows my style of blogging has changed somewhat. The strongest part of this blog used to be the stories of what happened in court with theory and news thrown in. Now, I think the strongest is the discussion of theory and law, usually with a concentration on Virginia. There are still some stories here and there, but not near as many. News stories don't often make it into my posts anymore, but that's more of a result of me putting a friendfeed up and just posting news links to it.
I used to wonder, back when I was a defense attorney, why there were so few prosecutors blogging. Now I understand. There are some considerations which are obvious enough, but some of which really hadn't occurred to me.
Of course, critiquing fellow workers and/or the Boss in a blog is just stupid and should be avoided. Anybody who doesn't disagree with a fellow worker once in a while is a saint or a rug, but if a conflict isn't major enough to leave the job a prosecutor should either work to resolve it in shop or just let it be. Nothing good can come of putting it in a blog.
Politics is also obviously a concern. As a deputy prosecutor you have a duty not to cause trouble for the Boss. This means watching out for the sensitivities of voters, other office holders, powerful people in the community, LEO's, judges, news agencies and anyone else who might impact the Boss and/or his office. So, if 5% of the people in the prosecutor's city believe the color Blue is God's color and refuse to swear an oath which does not in end "so help the Blue God" the prosecutor really can't comment on it for fear of offending a significant voting block.
Additionally, there is the concern that anything a prosecutor blogs about a case may be used against her either in trial or in an appeal or habeas. It's obvious that anyone who blogs about a trial while it's in progress is inviting trouble because of its potential to cause a mistrial (e.g.: if a juror stumbles upon it) or give away trial strategy to the other side. As a prosecutor she also has the problem of not knowing if a case is finished. A defendant can file post trial motions, or appeals, or habeases, or even a petition for a writ of actual innocence (in Virginia). Blogging about an important case coming out of the office the prosecutor works in invites these things, particularly in an era when people are overreacting to jurors text messaging or twittering. Sure, the motions filed based on a blog post would, almost always, be spurious, but a prosecutor just shouldn't go out of his way to provide ammo for a convicted offender.
One thing which makes it hard to blog is that a surprising amount of the interesting stuff which happens in a prosecutor's work is prior to court. You vet an interesting indictment before it goes to the grand jury. You help a deputy get a search warrant. Prosecutors and officers discuss what charges to file against someone. You discuss with officers ongoing investigations or the local drug trade connections. A lot of this is truly interesting and has some amazing stories attached. In fact, all sorts of interesting stories pop up precharge. Yet, a prosecutor can't blog about this stuff for both ethical and practical reasons.
Personally, I've been lucky in that both my elected bosses knew about my blog ahead of time and agreed to allow me to continue to blog. I've tried to honor their trust by not doing anything too stupid which might cause the Boss trouble. As anyone who has followed this blog for a while knows my style of blogging has changed somewhat. The strongest part of this blog used to be the stories of what happened in court with theory and news thrown in. Now, I think the strongest is the discussion of theory and law, usually with a concentration on Virginia. There are still some stories here and there, but not near as many. News stories don't often make it into my posts anymore, but that's more of a result of me putting a friendfeed up and just posting news links to it.
03 October 2009
01 October 2009
28 September 2009
Litter Patrol: Jail or Not?
After a number of misdemeanor convictions, Defendant is facing her first felony conviction. There's no doubt as to guilt (committed a felony in the presence of an officer), but the sentencing guidelines are really strange. If Defendant has spent any time in jail the guidelines will recommend she get over a year; if she has not the guidelines will recommend probation. Neither seems appropriate. Anyway, per the record, she served 10 days back in 2001, so it looks like she's going to go away for a while.
We all get to court and I give Attorney the plea offer and show him Defendant's guidelines. He goes off and talks to his client. Then he comes back. "She says she's never spent any time in jail." Uh-huh. Sure. I fire up the computer and connect to the Virginia Supreme Court's site. We look at the record of Defendant. Sure enough, February 2001 Defendant was sentenced to 90 days with 80 days suspended.
Attorney calls Defendant to the front of the courtroom and points at the screen. "Says here that you went to jail in 2001." Defendant, looking over my shoulder at the screen, "No sir. I did not. I remember coming to court for that, but I never got no jail time." Attorney decides that he needs to ask Judge for a continuance so he can check this. Judge says, "Attorney, your case is the last of the day, but I've got about an hour of paperwork waiting back in my office. This conviction was from our misdemeanor court. Go check it out and come back."
So off we go (after Defendant begs off to Attorney because she needs to go get a smoke). Attorney and I get walk down the hall to the clerk's office, which is luckily fairly empty of business. A helpful clerk takes about 10 minutes to hunt up the old file.
Right at the top it states "Guilty: Snipe Hunting Punishment: 90 days / 80 ssp." Then we read further down the sentencing document and find "10 days Hwy cleanup shall count as jail time."
WHAT THE HECK IS THAT?!?
We're not sure what to do with that. She was sentenced to 10 days in jail, but apparently the judge didn't make her go. Picking up litter on the side of the road sure isn't jail, but the judge defined it as such for this offender. Does that count against her on the sentencing guidelines under "Prior Incarceration/Commitment" or not? Neither of us are sure.
We bump heads for a little while about this. In the end, while I can make the argument that the litter patrol was incarceration - per the sentencing judge - I agree to not count it if Defendant serves some months on a misdemeanor she has appealed to the felony court. I offer this because if I lose the argument Defendant might get probation for both and I think that's entirely inappropriate. Attorney, knowing that if he argues the litter patrol shouldn't count as incarceration - no matter what the sentencing judge said - he might lose and that decisions the felony judge makes about sentencing guidelines cannot be appealed, recommends it to Defendant as better than risking over a year. She jumps at it.
The rest went pretty much according to normal procedure. Defendant pled guilty, got probation on the felony and months on the misdemeanor. And thus ended another strange day in the courtroom.
We all get to court and I give Attorney the plea offer and show him Defendant's guidelines. He goes off and talks to his client. Then he comes back. "She says she's never spent any time in jail." Uh-huh. Sure. I fire up the computer and connect to the Virginia Supreme Court's site. We look at the record of Defendant. Sure enough, February 2001 Defendant was sentenced to 90 days with 80 days suspended.
Attorney calls Defendant to the front of the courtroom and points at the screen. "Says here that you went to jail in 2001." Defendant, looking over my shoulder at the screen, "No sir. I did not. I remember coming to court for that, but I never got no jail time." Attorney decides that he needs to ask Judge for a continuance so he can check this. Judge says, "Attorney, your case is the last of the day, but I've got about an hour of paperwork waiting back in my office. This conviction was from our misdemeanor court. Go check it out and come back."
So off we go (after Defendant begs off to Attorney because she needs to go get a smoke). Attorney and I get walk down the hall to the clerk's office, which is luckily fairly empty of business. A helpful clerk takes about 10 minutes to hunt up the old file.
Right at the top it states "Guilty: Snipe Hunting Punishment: 90 days / 80 ssp." Then we read further down the sentencing document and find "10 days Hwy cleanup shall count as jail time."
WHAT THE HECK IS THAT?!?
We're not sure what to do with that. She was sentenced to 10 days in jail, but apparently the judge didn't make her go. Picking up litter on the side of the road sure isn't jail, but the judge defined it as such for this offender. Does that count against her on the sentencing guidelines under "Prior Incarceration/Commitment" or not? Neither of us are sure.
We bump heads for a little while about this. In the end, while I can make the argument that the litter patrol was incarceration - per the sentencing judge - I agree to not count it if Defendant serves some months on a misdemeanor she has appealed to the felony court. I offer this because if I lose the argument Defendant might get probation for both and I think that's entirely inappropriate. Attorney, knowing that if he argues the litter patrol shouldn't count as incarceration - no matter what the sentencing judge said - he might lose and that decisions the felony judge makes about sentencing guidelines cannot be appealed, recommends it to Defendant as better than risking over a year. She jumps at it.
The rest went pretty much according to normal procedure. Defendant pled guilty, got probation on the felony and months on the misdemeanor. And thus ended another strange day in the courtroom.
26 September 2009
Moving Closer to the Portable Electronic Office
The techsavy world (via Gizmodo) has been making a little bit of a fuss about the new "tablet" design which Microsoft is rumored to have come up with, apparently all based upon the leak of this video:
I've been watching the handheld computer market for a while now and this form factor is an innovative idea which I think merits consideration and imitation. Of late, the real innovations in handcomps have been on the ereader branch, so it's good to see innovation from the tablet side.
This solves one of the biggest problems with tablets: how to view a document and take notes on it using the same computer. Sure, there were workarounds. Some split the top and bottom half of the screen; some made the original document smaller. None were really satisfactory. Now a document can be on one panel and you can be taking notes on the other.
Nevertheless, I suspect that this will not become the tablet which launches thousands. Why? Because they will try to do too much and be too fancy and they probably still haven't solved the weight problem. Companies need to concentrate on making this (and any other tablet) into a replacement for a legal pad, files, and books. They need to concentrate on doing this well and getting the price as low as possible - down to the price level of netbooks or what good PDA's used to cost.
Just imagine being able to go to court with a handcomp the size of a legal pad containing all your files and notes (because you save them electronically as soon as you make them), complete copies of all the statutes and cases (for every US jurisdiction), and all the secondary treatises on evidence, procedure and law. It's not here yet, but, God willing, sometime soon.
Here's what I want in a handcomp:
Approximately the size & WEIGHT of a legal pad. If you've ever tried to use a tablet you realize that this is a major issue in usability. A 3-5 lb tablet doesn't sound so bad until you have to lug it around thru an entire trial (did it once - not happening again).
Folds open to have two panels.
The panels use e-ink and are not illuminated unless operator chooses to (this should save a lot of wear and tear on the eyes) & yes, I do realize that e-ink needs improvement
A slot for an SD memory card in order to import and export files / programs
Touch controls which work both with finger and stylus
Approxiamately the innards you'd find in a basic netbook: atom processor, 1 gb memory, at least 40 gb storage - in order to do this solid state storage will probably need to be made affordable and used
A very simple operating system. Nobody has to get too fancy here. Palm's old system worked wonderfully. Maybe something like a modified version of jolicloud. BTW, I can't speak too highly of jolicloud's operating system and have it now on my personal Acer portable and my work Gateway portable. It's amazingly easy to use and pretty much idiot proof.
The ability to send notes which I have written to another person via some sort of IMish function. This would be a great way to write notes freehand to send (as opposed to texting) or even to send handwriting to a secretary to be typed up.
An audio recorder. If Creative can fit a recorder in a Zen the size of a credit card they can get on in this.
I'm sure I'll think of something else later, but for now, that's my perfect handcomp.
I've been watching the handheld computer market for a while now and this form factor is an innovative idea which I think merits consideration and imitation. Of late, the real innovations in handcomps have been on the ereader branch, so it's good to see innovation from the tablet side.
This solves one of the biggest problems with tablets: how to view a document and take notes on it using the same computer. Sure, there were workarounds. Some split the top and bottom half of the screen; some made the original document smaller. None were really satisfactory. Now a document can be on one panel and you can be taking notes on the other.
Nevertheless, I suspect that this will not become the tablet which launches thousands. Why? Because they will try to do too much and be too fancy and they probably still haven't solved the weight problem. Companies need to concentrate on making this (and any other tablet) into a replacement for a legal pad, files, and books. They need to concentrate on doing this well and getting the price as low as possible - down to the price level of netbooks or what good PDA's used to cost.
Just imagine being able to go to court with a handcomp the size of a legal pad containing all your files and notes (because you save them electronically as soon as you make them), complete copies of all the statutes and cases (for every US jurisdiction), and all the secondary treatises on evidence, procedure and law. It's not here yet, but, God willing, sometime soon.
Here's what I want in a handcomp:
Approximately the size & WEIGHT of a legal pad. If you've ever tried to use a tablet you realize that this is a major issue in usability. A 3-5 lb tablet doesn't sound so bad until you have to lug it around thru an entire trial (did it once - not happening again).
Folds open to have two panels.
The panels use e-ink and are not illuminated unless operator chooses to (this should save a lot of wear and tear on the eyes) & yes, I do realize that e-ink needs improvement
A slot for an SD memory card in order to import and export files / programs
Touch controls which work both with finger and stylus
Approxiamately the innards you'd find in a basic netbook: atom processor, 1 gb memory, at least 40 gb storage - in order to do this solid state storage will probably need to be made affordable and used
A very simple operating system. Nobody has to get too fancy here. Palm's old system worked wonderfully. Maybe something like a modified version of jolicloud. BTW, I can't speak too highly of jolicloud's operating system and have it now on my personal Acer portable and my work Gateway portable. It's amazingly easy to use and pretty much idiot proof.
The ability to send notes which I have written to another person via some sort of IMish function. This would be a great way to write notes freehand to send (as opposed to texting) or even to send handwriting to a secretary to be typed up.
An audio recorder. If Creative can fit a recorder in a Zen the size of a credit card they can get on in this.
I'm sure I'll think of something else later, but for now, that's my perfect handcomp.
25 September 2009
Census Worker Lynched in Clay County, Kentucky
Found hung with "Fed" written on his chest, but the FBI hasn't determined whether it was because of "anti-government sentiment."
Here's the AP video:
Here's the AP video:
21 September 2009
Why do people become prosecutors?
From D.A.: Prosecutors in Their Own Words by Mark Baker:
"As one former prosecutor who is now a judge reasoned at the beginning of her career, 'I figured as a D.A., if you did your job and the person was guilty, the person went to jail. If you did a bad job and the person was guilty, the person got off. However, if you were in Legal Aid and you did a bad job, somebody went to jail. I figured it wasn't a good idea to represent people and risk them going to jail because of my inexperience.'"
"As one former prosecutor who is now a judge reasoned at the beginning of her career, 'I figured as a D.A., if you did your job and the person was guilty, the person went to jail. If you did a bad job and the person was guilty, the person got off. However, if you were in Legal Aid and you did a bad job, somebody went to jail. I figured it wasn't a good idea to represent people and risk them going to jail because of my inexperience.'"
The Kindle, Books, and Record Albums
Scott, who has previously wondered why people would waste money on a Kindle DX, is now singing the praises of books rather than soulless electronics. After reading it, I recognized an argument I'd heard before.
You see, once upon a time there were these sound playback devices called "record albums." Those of you younger than 30 may never have seen one of these. They were discs with several songs scratched onto them which were played by putting a needle on the disc while it rotated. They also came with album covers which provided protection and art. Records were first challenged by 8-tracks, which allowed ease in choosing which included song listened to and were less vulnerable to damage. Then came cassette tapes, which were easier to carry, less vulnerable to damage, and allowed listeners to record their own music. Then came compact discs which offered more space for songs in a smaller format with the ability to easily choose a track and sounded almost as good as records. These killed records. In turn, they are now in the process of being killed by mp3's.
Your record collection told people who you were. People would browse through your collection and you'd even set your most impressive albums (in their covers) out for people to see. If you had the original White Album people would be jealous. If you had a cutting edge comedian like Bob Newhart you showed you were hip. Yet, despite the resistance of music companies and the howls from audiophiles, it all passed because new technologies just provided too much of an advantage to users.
Mass printed books have been around for about 550 years. They aren't about to disappear overnight. However, we've already passed the point where records were when 8-tracks came into existence. Devices such as Palm PDA's and Apple's iPhone have provided ebook reading experiences which are convenient, but neither practical or satisfying because of their size. Reading on a regular computer ties you to a desk or a slightly less inconvenient portable computer. Tablet computers seemed to be the solution, but they have never gotten light enough nor achieved sufficient battery life (I don't know about ya'll, but I can read for more than a couple hours at a sitting). Additionally, unlike ereaders, reading from a computer screen tends to tire the eyes much more than reading from paper.
Nevertheless, publishers are almost all coming around to offering ebooks. A very incomplete list would include firms such as Penguin, Random House, HarperCollins, Simon & Schuster, and Baen. They're not going there because they want to; they are providing ebooks because they've seen the future.
Ebooks are the future. As they stand now they are just short of the slot cassette tapes filled in competition with records. Their practicality and convenience isn't quite to the place that it can replace books completely, but the primary reason that they haven't made huge inroads yet is that the companies selling them are charging too much. Thus they remain an item restricted to those with large amounts of disposable income.
Mind you, I don't think that ereaders will completely drive all books from the field. For professionals and students something like a Kindle DX with an ability to write notes on and save (as though writing in the margins of a text book or taking notes in a case file) should become somewhat normative. Just imagine having all your case files in an ereader with you when the judge or another attorney or your client finds you in the courthouse and starts asking you about some case a month down the road; 10 seconds later you're looking at the file and can answer secure in the knowledge that you're not confusing the Smith case with the Smyth case. Newspapers and magazines are hopeful about this format, but I think this is something of a pipe dream because for a large ereader to be the format used for daily, weekly, or even monthly publications it would have to be cheaper than the smaller ereaders and I just don't see that happening.
On the other hand, low end, smaller ereaders will probably take the place of paperback books. To be honest, if the companies can get us all switched to ebooks rather than paperbacks they can sell the book for less and make more profit. Let's face it, they are currently selling us ebooks which they print out in order to sell them to us. If they can cut out the costs of paper, ink, and the brick&mortar's share of the sale, profit will be almost 100%.
Yet, I believe that books will remain. For one thing, people don't really buy hardback books to read. They buy hardback books because they want to save them, display them, impress others with them. The hardback books you buy and put on display are more important as signalers. They lend atmosphere and let people know who you are (at least who you want them to think you are). For another, ereaders will always be too expensive for some. My thoughts are that the small ereaders need to be under $100 and the large ones need to be somewhere under $250 if they are going to draw customers below the upper middle class. They'll probably also have to improve their graphics to the point that People magazine, etc. could be displayed in full color. Even then, there will be those who cannot afford them. For them some sort of books, newspapers, and magazines will remain. I hope.
Of course, none of this is going to happen tomorrow, or even next week. This is something which will happen in the fullness of time. I look for universities requiring their students to have ereaders to buy and load text books on, as the probable major sign that ereaders have taken the lead over mass market books and I've yet to hear of any doing this so far. I think we may see it in the next ten years.
As for me? Well, I don't own an ereader yet. If I had the money I'd probably be eyeing the Sony ereaders (particularly the PRS_900BC due in December). I want one, but the price point just isn't reasonable enough yet for me to rationalize that I'll save (in the long run) by purchasing an ereader so I can populate it with ebooks which cost less than the books I'd buy otherwise.
You see, once upon a time there were these sound playback devices called "record albums." Those of you younger than 30 may never have seen one of these. They were discs with several songs scratched onto them which were played by putting a needle on the disc while it rotated. They also came with album covers which provided protection and art. Records were first challenged by 8-tracks, which allowed ease in choosing which included song listened to and were less vulnerable to damage. Then came cassette tapes, which were easier to carry, less vulnerable to damage, and allowed listeners to record their own music. Then came compact discs which offered more space for songs in a smaller format with the ability to easily choose a track and sounded almost as good as records. These killed records. In turn, they are now in the process of being killed by mp3's.
Your record collection told people who you were. People would browse through your collection and you'd even set your most impressive albums (in their covers) out for people to see. If you had the original White Album people would be jealous. If you had a cutting edge comedian like Bob Newhart you showed you were hip. Yet, despite the resistance of music companies and the howls from audiophiles, it all passed because new technologies just provided too much of an advantage to users.
Mass printed books have been around for about 550 years. They aren't about to disappear overnight. However, we've already passed the point where records were when 8-tracks came into existence. Devices such as Palm PDA's and Apple's iPhone have provided ebook reading experiences which are convenient, but neither practical or satisfying because of their size. Reading on a regular computer ties you to a desk or a slightly less inconvenient portable computer. Tablet computers seemed to be the solution, but they have never gotten light enough nor achieved sufficient battery life (I don't know about ya'll, but I can read for more than a couple hours at a sitting). Additionally, unlike ereaders, reading from a computer screen tends to tire the eyes much more than reading from paper.
Nevertheless, publishers are almost all coming around to offering ebooks. A very incomplete list would include firms such as Penguin, Random House, HarperCollins, Simon & Schuster, and Baen. They're not going there because they want to; they are providing ebooks because they've seen the future.
Ebooks are the future. As they stand now they are just short of the slot cassette tapes filled in competition with records. Their practicality and convenience isn't quite to the place that it can replace books completely, but the primary reason that they haven't made huge inroads yet is that the companies selling them are charging too much. Thus they remain an item restricted to those with large amounts of disposable income.
Mind you, I don't think that ereaders will completely drive all books from the field. For professionals and students something like a Kindle DX with an ability to write notes on and save (as though writing in the margins of a text book or taking notes in a case file) should become somewhat normative. Just imagine having all your case files in an ereader with you when the judge or another attorney or your client finds you in the courthouse and starts asking you about some case a month down the road; 10 seconds later you're looking at the file and can answer secure in the knowledge that you're not confusing the Smith case with the Smyth case. Newspapers and magazines are hopeful about this format, but I think this is something of a pipe dream because for a large ereader to be the format used for daily, weekly, or even monthly publications it would have to be cheaper than the smaller ereaders and I just don't see that happening.
On the other hand, low end, smaller ereaders will probably take the place of paperback books. To be honest, if the companies can get us all switched to ebooks rather than paperbacks they can sell the book for less and make more profit. Let's face it, they are currently selling us ebooks which they print out in order to sell them to us. If they can cut out the costs of paper, ink, and the brick&mortar's share of the sale, profit will be almost 100%.
Yet, I believe that books will remain. For one thing, people don't really buy hardback books to read. They buy hardback books because they want to save them, display them, impress others with them. The hardback books you buy and put on display are more important as signalers. They lend atmosphere and let people know who you are (at least who you want them to think you are). For another, ereaders will always be too expensive for some. My thoughts are that the small ereaders need to be under $100 and the large ones need to be somewhere under $250 if they are going to draw customers below the upper middle class. They'll probably also have to improve their graphics to the point that People magazine, etc. could be displayed in full color. Even then, there will be those who cannot afford them. For them some sort of books, newspapers, and magazines will remain. I hope.
Of course, none of this is going to happen tomorrow, or even next week. This is something which will happen in the fullness of time. I look for universities requiring their students to have ereaders to buy and load text books on, as the probable major sign that ereaders have taken the lead over mass market books and I've yet to hear of any doing this so far. I think we may see it in the next ten years.
As for me? Well, I don't own an ereader yet. If I had the money I'd probably be eyeing the Sony ereaders (particularly the PRS_900BC due in December). I want one, but the price point just isn't reasonable enough yet for me to rationalize that I'll save (in the long run) by purchasing an ereader so I can populate it with ebooks which cost less than the books I'd buy otherwise.
16 September 2009
Larcenous Licentiousness
1) Beer's just not worth that much trouble.
2) Bus theft and slow speed pcp induced chase.
3) Not worth the time: stealing hot sauce and electrical tape.
4) The pink beanie thief.
5) "Did you hear about the identity thief in Seattle who tried to open a JC Penney credit card account with one of the very women whose identity she had stolen?"
6) Wow. Don't shoot at the tires of a fleeing thief in Missouri or you'll catch a felony charge and have your concealed weapon permit revoked.
7) Stole 6,000 gallons of gasoline in under 23 minutes. That's a talent better spent on NASCAR rather than thievery.
8) Credit card receipts.
9) ATM Machine stolen from inside the bank.
10) If you steal from the police, you will probably go to prison.
11) Don't bring your kid to work with you if you are a thief.
12) Is there a black market in stolen canaries?
2) Bus theft and slow speed pcp induced chase.
3) Not worth the time: stealing hot sauce and electrical tape.
4) The pink beanie thief.
5) "Did you hear about the identity thief in Seattle who tried to open a JC Penney credit card account with one of the very women whose identity she had stolen?"
6) Wow. Don't shoot at the tires of a fleeing thief in Missouri or you'll catch a felony charge and have your concealed weapon permit revoked.
7) Stole 6,000 gallons of gasoline in under 23 minutes. That's a talent better spent on NASCAR rather than thievery.
8) Credit card receipts.
9) ATM Machine stolen from inside the bank.
10) If you steal from the police, you will probably go to prison.
11) Don't bring your kid to work with you if you are a thief.
12) Is there a black market in stolen canaries?
14 September 2009
Splitting the Magistrate Baby
In Virginia there is a judicial officer known as a magistrate. Magistrates are the guys who are on duty 24 hours a day and their primary job is to decide whether there is probable cause to issue a warrant and set initial bonds (19.2-45). Not only LEO's can go to the magistrate; regular citizens can go and try to get a warrant issued all on their own. The store which gets 30 bad checks a month can go get its own warrants directly, saving us all time. As well, regular citizens can go in and try to get warrants for things such as trespass or assault. Of course, this has made the magistrates the center of a lot of complaints over the years.
There are citizens who blatantly abuse the process, and get all sorts of marginal warrants filed. A favorite trick is for a defendant to get a warrant served on her and immediately go to the magistrate and file charges against the complaining witness. Then there's always forgetful Mammaw Smith from up the hollow who files trespassing charges on Bob Jones every 6 months for trespassing on her family's land, despite the fact that her son sold Jones the property 10 years ago. And it seems that every nasty divorce spawns charges, counter-charges, and more charges.
There isn't a criminal attorney, prosecution or defense, who hasn't stood in court wondering how in the world Mammaw Smith got yet another warrant sworn against poor Bob. Judges get angry because they issue capiases (bench warrants) because Defendant hasn't come to court for his last three court dates and the magistrate keeps giving Defendant bond - after which she again does not show up for court. LEO's and prosecutors get upset because sometimes the magistrates seem not to understand nuances in the law.1
This is not to say that the rest of us in the crimlaw community haven't taken advantage of the magistrates. Magistrates save judges from being called at 2 a.m. to issue a warrant. They keep prosecutors' offices from being swamped with deciding the merit of minor charges. As well, every officer and prosecutor has told a person who absolutely refuses to take "No, I'm not going file charges" some variation on the following: "Mrs. McGillicutty, I'm not going to file charges on your son-in-law for putting your 22 year old cat to sleep after it got hit by a car. If you want, it is your right go to the magistrate yourself and see if he'll give you a warrant."
In any event, there has been a perception since I've been practicing that the magistrate system needs fixing. With that in mind, it's not too surprising that in the last few years the General Assembly has taken to tinkering with the magistrate offices. It began by taking the power to appoint magistrates away from the chief judge of the circuit and giving the power to the Virginia Supreme Court.2 Then, last year, the General Assembly passed laws requiring the chief magistrate to be a lawyer3 and the other magistrates to have a bachelor's degree.
The latest change took place this year, when the General Assembly changed the law so that magistrates have to "consult" with a prosecutor or LEO before issuing a felony warrant. When initially presented to the House and Senate the bill required the magistrate to get "authorization" from a prosecutor or LEO. Somehow that language got changed between presentation and passage.
Rather than leaving the situation the way it was or requiring that LEO's investigate or prosecutors approve all felonies from the beginning the General Assembly split the baby. Basically, it told the magistrates that they weren't trusted to show proper judgment in issuing felony warrants, but that it wasn't going to take the power away from them. It was just going to make it a little less convenient for them to exercise the power. They'd have to make a phone call. After the phone call they could ignore everything a prosecutor or LEO said, but they did have to make the call.
I'd be *annoyed* if someone did that to me and I imagine the magistrates were. However, after an initial bit of confusion it has all settled out. Now, the magistrates do exactly as they did before, except that they call a prosecutor who knows nothing about the case, hasn't seen any evidence, and can't even judge the credibility of the complaining witnesses thru the phone and tell him that they are going to swear out a warrant. Not sure that accomplishes a whole lot.
Personally, I'm not sure that consulting with or even calling to get authorization from a prosecutor accomplishes much. However, I do wish that felonies would require investigation by an officer - at least for warrants on violent felonies. Not so much because I think that the magistrate isn't capable of making the call, but rather because the officers usually have a good idea who needs to be subpoenaed and what evidence is needed for the trial. Citizens who swear out a warrant almost never understand these things and are unreachable until they show up in court on the date the magistrate has scheduled them to be in general district court.
--------------------
1 The issue which comes to mind is the Obstruction of Justice statute. This statute was used as the Virginia version of what other States might call "resisting arrest", but in Jordan the Virginia Supreme Court basically ruled that the Defendant had to succeed in stopping a charge from going forward to constitute obstruction. The solution is easy - the offender should be charged with Attempting to Obstruct Justice, which carries exactly the same penalty (18.2-27). However, people keep getting charged with Obstruction and LEO's say that they can't get magistrates to approve misdemeanor attempt charges.
2 I'm not sure what the rationale for this change was. It would seem desirable to have the local chief judge have the control to set consistent policies and legal interpretations within a circuit.
3 It will be interesting to see which lawyers fill these slots once the current, grandfathered chief magistrates leave. Ideally, the slots would go to attorneys who have spent years concentrating their practice on criminal law. However, there is some concern that the Supreme Court will have to beat the bushes to fill these slots and be forced to fill them with lawyers with little criminal law experience.
There are citizens who blatantly abuse the process, and get all sorts of marginal warrants filed. A favorite trick is for a defendant to get a warrant served on her and immediately go to the magistrate and file charges against the complaining witness. Then there's always forgetful Mammaw Smith from up the hollow who files trespassing charges on Bob Jones every 6 months for trespassing on her family's land, despite the fact that her son sold Jones the property 10 years ago. And it seems that every nasty divorce spawns charges, counter-charges, and more charges.
There isn't a criminal attorney, prosecution or defense, who hasn't stood in court wondering how in the world Mammaw Smith got yet another warrant sworn against poor Bob. Judges get angry because they issue capiases (bench warrants) because Defendant hasn't come to court for his last three court dates and the magistrate keeps giving Defendant bond - after which she again does not show up for court. LEO's and prosecutors get upset because sometimes the magistrates seem not to understand nuances in the law.1
This is not to say that the rest of us in the crimlaw community haven't taken advantage of the magistrates. Magistrates save judges from being called at 2 a.m. to issue a warrant. They keep prosecutors' offices from being swamped with deciding the merit of minor charges. As well, every officer and prosecutor has told a person who absolutely refuses to take "No, I'm not going file charges" some variation on the following: "Mrs. McGillicutty, I'm not going to file charges on your son-in-law for putting your 22 year old cat to sleep after it got hit by a car. If you want, it is your right go to the magistrate yourself and see if he'll give you a warrant."
In any event, there has been a perception since I've been practicing that the magistrate system needs fixing. With that in mind, it's not too surprising that in the last few years the General Assembly has taken to tinkering with the magistrate offices. It began by taking the power to appoint magistrates away from the chief judge of the circuit and giving the power to the Virginia Supreme Court.2 Then, last year, the General Assembly passed laws requiring the chief magistrate to be a lawyer3 and the other magistrates to have a bachelor's degree.
The latest change took place this year, when the General Assembly changed the law so that magistrates have to "consult" with a prosecutor or LEO before issuing a felony warrant. When initially presented to the House and Senate the bill required the magistrate to get "authorization" from a prosecutor or LEO. Somehow that language got changed between presentation and passage.
Rather than leaving the situation the way it was or requiring that LEO's investigate or prosecutors approve all felonies from the beginning the General Assembly split the baby. Basically, it told the magistrates that they weren't trusted to show proper judgment in issuing felony warrants, but that it wasn't going to take the power away from them. It was just going to make it a little less convenient for them to exercise the power. They'd have to make a phone call. After the phone call they could ignore everything a prosecutor or LEO said, but they did have to make the call.
I'd be *annoyed* if someone did that to me and I imagine the magistrates were. However, after an initial bit of confusion it has all settled out. Now, the magistrates do exactly as they did before, except that they call a prosecutor who knows nothing about the case, hasn't seen any evidence, and can't even judge the credibility of the complaining witnesses thru the phone and tell him that they are going to swear out a warrant. Not sure that accomplishes a whole lot.
Personally, I'm not sure that consulting with or even calling to get authorization from a prosecutor accomplishes much. However, I do wish that felonies would require investigation by an officer - at least for warrants on violent felonies. Not so much because I think that the magistrate isn't capable of making the call, but rather because the officers usually have a good idea who needs to be subpoenaed and what evidence is needed for the trial. Citizens who swear out a warrant almost never understand these things and are unreachable until they show up in court on the date the magistrate has scheduled them to be in general district court.
--------------------
1 The issue which comes to mind is the Obstruction of Justice statute. This statute was used as the Virginia version of what other States might call "resisting arrest", but in Jordan the Virginia Supreme Court basically ruled that the Defendant had to succeed in stopping a charge from going forward to constitute obstruction. The solution is easy - the offender should be charged with Attempting to Obstruct Justice, which carries exactly the same penalty (18.2-27). However, people keep getting charged with Obstruction and LEO's say that they can't get magistrates to approve misdemeanor attempt charges.
2 I'm not sure what the rationale for this change was. It would seem desirable to have the local chief judge have the control to set consistent policies and legal interpretations within a circuit.
3 It will be interesting to see which lawyers fill these slots once the current, grandfathered chief magistrates leave. Ideally, the slots would go to attorneys who have spent years concentrating their practice on criminal law. However, there is some concern that the Supreme Court will have to beat the bushes to fill these slots and be forced to fill them with lawyers with little criminal law experience.
08 September 2009
Post Melendez-Diaz Changes in Virginia Law
Things seem to have settled down in Virginia post-Melendez-Diaz.
Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.
Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.
1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.
2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.
3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?
Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.
Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.
Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.
1) 28 Days - or more - Prior to Trial: A copy of the certificate, along with an explanation of Defendant's right to object and require presence of the person who performed the test to be present in court, must be sent both to Defendant (or counsel) and the Clerk.Issues:
2) 14 Days after Certificate Delivered: Defendant's right to have tester present is waived if Commonwealth not notified prior to this date.
3) Prior to Trial: Defendant must raise any claims not to have received timely notice from the Commonwealth prior to trial. The Commonwealth's proof of provision shall be prima facie evidence that it was delivered on that date.
4) If the Trial Court finds that notice was not timely given or that the Commonwealth, after exercising due diligence, cannot have the tester in court on the trial date, shall continue the case.
5) Continuances: Up to 90 days "if the accused has been held continuously in custody." Up to 120 days "if the accused has not been held continuously in custody." No continuance pursuant to this section shall count against Virginia's speedy trial statute.
6) Preliminary Hearings: None of this is required to use a certificate in a preliminary hearing.
1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.
2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.
3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?
Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.
07 September 2009
02 September 2009
Seen at Court
Defendant and Attorney are standing 2 feet in front of the judicial bench. Attorney has just had a bond hearing at defendant's request. Defendant told the judge she should lower the bond because "I've had the same bond for 8 months and my family hasn't been able to pay it."
After the judge shoots that down, Defendant starts insisting that he be allowed to plead guilty right now because he has to get out out today. Attorney tries to calm him down; tries to pull him aside to talk; tries to get him to stop talking; tries to make him realize that he has a plea date set for next week when Attorney expects to have a plea offer. He isn't having any of it and keeps insisting that he wants to plead guilty today! The judge tells him that she'll be happy to let him plead guilty and set a sentencing hearing for three months down the line. It doesn't seem to penetrate the head of Defendant that this will probably keep him in jail longer.
Finally, Attorney turns to Defendant and says, "You can do this against my advise. You shouldn't, but you can. I'm going to walk out of the front door of the courthouse either way. You still insist on pleading today?"
And, you know what? It worked. The guy finally came to his senses and decided to wait until next week.
After the judge shoots that down, Defendant starts insisting that he be allowed to plead guilty right now because he has to get out out today. Attorney tries to calm him down; tries to pull him aside to talk; tries to get him to stop talking; tries to make him realize that he has a plea date set for next week when Attorney expects to have a plea offer. He isn't having any of it and keeps insisting that he wants to plead guilty today! The judge tells him that she'll be happy to let him plead guilty and set a sentencing hearing for three months down the line. It doesn't seem to penetrate the head of Defendant that this will probably keep him in jail longer.
Finally, Attorney turns to Defendant and says, "You can do this against my advise. You shouldn't, but you can. I'm going to walk out of the front door of the courthouse either way. You still insist on pleading today?"
And, you know what? It worked. The guy finally came to his senses and decided to wait until next week.
01 September 2009
Carroll Doctrine
Last week I got asked to research an interesting question about the limitations which the Gant decision might have upon the Carroll Doctrine. It didn't seem to have any, but it raised my interest.
The Carroll Doctrine came out of a case : Carroll v. U.S., 1924 (267 U.S. 132). A prohibition era case, Carroll is the case which creates the constitutional difference between searches of dwellings and vehicles. After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can't just stop any vehicle he wants to.
I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let's consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain't going to work.
Consider a case wherein the local sheriff's department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he's never going to agree to a consent search. There's no cell service anywhere near and the mountain next to the road isn't letting any radio waves get through.
Deputy Smith is faced with a number of bad choices. If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.
In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO's to easily get search warrants. If a smuggler is stopped at a port in Miami or driving through New York City local LEO's probably shouldn't be able to rely on Carroll. On the other hand, in a rural county in Nebraska where there are two deputies on duty and the judge comes by once a week, Carroll may be a necessity if there is to be a realistic possibility of actually enforcing the law.
[addendum] Apprently, my reading of Carroll was too restrictive. Via Commonwealth v. Grimes, I see that the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it.
The Carroll Doctrine came out of a case : Carroll v. U.S., 1924 (267 U.S. 132). A prohibition era case, Carroll is the case which creates the constitutional difference between searches of dwellings and vehicles. After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can't just stop any vehicle he wants to.
The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops has contraband [] therein which is being illegally transported.To sum it up, Carroll allows LEO's with probable cause to search an entire vehicle because of the mobility of the vehicle and the difficulty of obtaining a warrant in a timely manner.
I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let's consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain't going to work.
Consider a case wherein the local sheriff's department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he's never going to agree to a consent search. There's no cell service anywhere near and the mountain next to the road isn't letting any radio waves get through.
Deputy Smith is faced with a number of bad choices. If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.
In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO's to easily get search warrants. If a smuggler is stopped at a port in Miami or driving through New York City local LEO's probably shouldn't be able to rely on Carroll. On the other hand, in a rural county in Nebraska where there are two deputies on duty and the judge comes by once a week, Carroll may be a necessity if there is to be a realistic possibility of actually enforcing the law.
[addendum] Apprently, my reading of Carroll was too restrictive. Via Commonwealth v. Grimes, I see that the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it.
28 August 2009
25 August 2009
III: Limitations on the Ability of a Judge to Alter a Sentence
In Virginia § 19.2-303 gives a judge certain abilities to suspend a felony sentence:
Last week, in Wilson v. Virginia, the Virginia Court of Appeals addressed - yet again - the jurisdiction of trial courts under this statute. Apparently, after all the evidence had been given in the hearing the trial judge, at the defense attorney's prompting, ruled that she did not have jurisdiction to alter the defendant's sentence. The Court of Appeals makes short shrift of this restating "§ 19.2-303 gives trial courts jurisdiction over all felony convictions provided the defendant has not been sent to the Department of Corrections."
A win for the defense? Sort of. As the hearing had already been held before the judge rendered her ruling, the Court of Appeals had an entire record before it upon which to decide whether or not the case should be returned to the trial court for further consideration. Therefore, the Court of Appeals moves forward with a harmless error analysis.
Circumstances in Mitigation
The Court zeroed in on one part of the statute: "circumstances in mitigation of the offense" (something I'd previously said I didn't think would happen - see comments here). However, it's not the most satisfying analysis. The discussing paragraphs meander back and forth in their description of "mitigating circumstances." When the Court discusses Virginia law it has a fairly restrictive interpretation. It quotes Shiflett, defining mitigating circumstances as
However, the Court also adds in some ambiguity. Directly after it quotes Shiflett, the Court quotes Black and defines mitigating circumstances without any reference to the offense
Why wasn't it? Well, maybe because the Court wasn't worrying about my concerns over this statute. It was trying to define "mitigation of the offense" in this statute so that it does not include "absolution of guilt / nullification of conviction." I'd previously stated that I thought the purpose of this statute was to allow the judge to consider both perfect and imperfect defenses beyond the trial courts 21 day retention of jurisdiction post-trial, allowing the judge to suspend part or all of a sentence. The Court's interpretation takes perfect defenses off the table. If, 22 days after the trial, the lab realizes it mixed the DNA, or the police realize they got the wrong guy, or the defendant admits to making it all up, the defendant has no relief short of appeal, habeas, or writ of actual innocence. The defendant could spend months, maybe a year+ (or longer, depending on how quickly the courts worked), incarcerated despite knowledge of innocence 22 days after trial.1 As you might surmise from my reaction above, I'm not a fan of the possible result of this decision. I'm particularly irked by the use of the creation of a statute in 2004 (the writ of actual innocence) to interpret the meaning of a statute passed in 1975 (19.2-303). However, I'm not going to get into a legislative intent argument. If the Court wants to proclaim that the General Assembly intends to keep innocents incarcerated until they can jump through all the hoops of a habeas or writ it can stake that position out all for itself.
I can't even get there textually. Mitigation is defined by Webster as "1: to cause to become less harsh or hostile; 2: to make less severe or painful." Mitigation isn't as specific as absolve or nullify, but it is a word which has the breadth to incorporate both. If guilt is absolved or nullified it definitely lessens the harshness and severity of the defendant's involvement in the offense.
Oh well, in a disagreement between myself and Judge Humphreys over the interpretation of a statute I suspect his actual legal decision will carry the day over my sniping from the sidelines.
Here's where I now understand the rule to be for this section of § 19.2-303: A defendant can only get relief if she presents evidence which mitigates the offense, but does not tend to prove the defendant not guilty. The evidence presented may only lessen the offender's moral culpability and may only address her prior record or the circumstances of the offense.
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1 Yes, I know that there are probably not quite legitimate means by which a creative trial court could fudge and nullify the conviction, but what if the judge is a scrupulously honest man who won't act against the letter of the law?
If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.I've discussed this twice before here and here.
Last week, in Wilson v. Virginia, the Virginia Court of Appeals addressed - yet again - the jurisdiction of trial courts under this statute. Apparently, after all the evidence had been given in the hearing the trial judge, at the defense attorney's prompting, ruled that she did not have jurisdiction to alter the defendant's sentence. The Court of Appeals makes short shrift of this restating "§ 19.2-303 gives trial courts jurisdiction over all felony convictions provided the defendant has not been sent to the Department of Corrections."
A win for the defense? Sort of. As the hearing had already been held before the judge rendered her ruling, the Court of Appeals had an entire record before it upon which to decide whether or not the case should be returned to the trial court for further consideration. Therefore, the Court of Appeals moves forward with a harmless error analysis.
Circumstances in Mitigation
The Court zeroed in on one part of the statute: "circumstances in mitigation of the offense" (something I'd previously said I didn't think would happen - see comments here). However, it's not the most satisfying analysis. The discussing paragraphs meander back and forth in their description of "mitigating circumstances." When the Court discusses Virginia law it has a fairly restrictive interpretation. It quotes Shiflett, defining mitigating circumstances as
[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the crime.It then discusses § 19.2-264.4, stating
The "facts in mitigation" identified by the General Assembly share a common thread in that, while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed and may be relevant in sentencing.This tracks with my previous assertion that mitigation of the offense actually has to be related to the offense.
However, the Court also adds in some ambiguity. Directly after it quotes Shiflett, the Court quotes Black and defines mitigating circumstances without any reference to the offense
a fact or situation that does not bear on the question of the defendant’s guilt, but that is considered by the court in imposing punishmentThe Court ends the paragraph with more ambiguity as to exactly what mitigating circumstances are
Put succinctly, the term "facts in mitigation" has no bearing on the actual guilt or innocence of the accused but rather relates only to the degree to which punishment is appropriate.Nevertheless, I don't think the ambiguity is enough to mask that the Court is stating (collaterally) that Virginia law requires the mitigation to be "of the offense", not "of the sentence." I only wish the Court had been more clear on this point.
Why wasn't it? Well, maybe because the Court wasn't worrying about my concerns over this statute. It was trying to define "mitigation of the offense" in this statute so that it does not include "absolution of guilt / nullification of conviction." I'd previously stated that I thought the purpose of this statute was to allow the judge to consider both perfect and imperfect defenses beyond the trial courts 21 day retention of jurisdiction post-trial, allowing the judge to suspend part or all of a sentence. The Court's interpretation takes perfect defenses off the table. If, 22 days after the trial, the lab realizes it mixed the DNA, or the police realize they got the wrong guy, or the defendant admits to making it all up, the defendant has no relief short of appeal, habeas, or writ of actual innocence. The defendant could spend months, maybe a year+ (or longer, depending on how quickly the courts worked), incarcerated despite knowledge of innocence 22 days after trial.1 As you might surmise from my reaction above, I'm not a fan of the possible result of this decision. I'm particularly irked by the use of the creation of a statute in 2004 (the writ of actual innocence) to interpret the meaning of a statute passed in 1975 (19.2-303). However, I'm not going to get into a legislative intent argument. If the Court wants to proclaim that the General Assembly intends to keep innocents incarcerated until they can jump through all the hoops of a habeas or writ it can stake that position out all for itself.
I can't even get there textually. Mitigation is defined by Webster as "1: to cause to become less harsh or hostile; 2: to make less severe or painful." Mitigation isn't as specific as absolve or nullify, but it is a word which has the breadth to incorporate both. If guilt is absolved or nullified it definitely lessens the harshness and severity of the defendant's involvement in the offense.
Oh well, in a disagreement between myself and Judge Humphreys over the interpretation of a statute I suspect his actual legal decision will carry the day over my sniping from the sidelines.
Here's where I now understand the rule to be for this section of § 19.2-303: A defendant can only get relief if she presents evidence which mitigates the offense, but does not tend to prove the defendant not guilty. The evidence presented may only lessen the offender's moral culpability and may only address her prior record or the circumstances of the offense.
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1 Yes, I know that there are probably not quite legitimate means by which a creative trial court could fudge and nullify the conviction, but what if the judge is a scrupulously honest man who won't act against the letter of the law?
24 August 2009
Virginia Jury Sentencing: Elaborations on the Limits of Defense Evidence
You'll recall that a while back I discussed what the Virginia courts had determined to be relevant evidence a defendant can introduce during a non-capital jury sentencing hearing.
Harkening back to Shiflett, in Jones Jr v. Commonwealth, the Court further explores the adoption of the same standard for the introduction of evidence in non-capital jury sentencing hearings as allowed in capital hearings. It lists other evidence which has been rejected: (1) sentence of codefendant; (2) impact of incarceration on defendant mental state; (3) defendant's wife's illness and dependence upon him; (4) impact on family; (5) impact on employment; & (6) family history.1 The Court adopts § 19.2-264.4(B) and judges the relevance of the evidence through the purposes of punishment: "deterrence, incapacitation, rehabilitation and retribution." In rejecting the appellant's argument it states the acceptable evidence which can be introduced during jury sentencing: (1) circumstances surrounding the offense; (2) history and background of the offender; (3) circumstances tending to explain the offense; (4) criminal record; (5) mental condition; (6) age of the offender; & (7) any other factor in mitigation of the offense.
Of course, the last factor is open ended. Fortunately, just last week the Court of Appeals addressed this in Wilson v. Commonwealth (a decision discussing the limits on a judges's ability to suspend a sentence under 19.2-303). Discussing § 19.2-264.4 the Court states that the "common thread" of the "facts in mitigation" is that "while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed."
So, a defendant cannot introduce extraneous evidence (family, job, &cetera) or evidence which impacts legal culpability.2 Only factors which weigh on the morality of the defendant's role in the illegal act are allowed.3
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1 The Court also cites Pierce v. Commonwealth as finding "testimony that defendant was a "good upstanding citizen" and a "loyal and loving son" relevant", however Pierce had nothing to do with the relevance of that evidence. It found that a defendant can present evidence during a sentencing hearing even if the prosecution has not. Even had it ruled that evidence relevant, Pierce was a Court of Appeals case decided 3 years before the Supreme Court's Shiflett and would seem to have been overruled.
2 There is at least one exception to this. Accomodation lessens legal culpability for drug distribution in Virginia and it is supposed to be argued in the jury sentencing phase.
3 Defense evidence pertaining to the defendant's record is also allowed, per Shiflett. This may relate to the morality of the offender's participation in the offense or may simply be allowed as rebuttal to the prosecution's introduction of defendant's prior record.
.
"Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime"; in doing so it rejected a "life story" and "testimony about [defendant's] employment, [defendant's] family responsibilities."This came from the Virginia Supreme Court in Shifflett v. Commonwealth and in the last month and a half the Virginia Court of Appeals has elaborated upon this both directly and indirectly.
Harkening back to Shiflett, in Jones Jr v. Commonwealth, the Court further explores the adoption of the same standard for the introduction of evidence in non-capital jury sentencing hearings as allowed in capital hearings. It lists other evidence which has been rejected: (1) sentence of codefendant; (2) impact of incarceration on defendant mental state; (3) defendant's wife's illness and dependence upon him; (4) impact on family; (5) impact on employment; & (6) family history.1 The Court adopts § 19.2-264.4(B) and judges the relevance of the evidence through the purposes of punishment: "deterrence, incapacitation, rehabilitation and retribution." In rejecting the appellant's argument it states the acceptable evidence which can be introduced during jury sentencing: (1) circumstances surrounding the offense; (2) history and background of the offender; (3) circumstances tending to explain the offense; (4) criminal record; (5) mental condition; (6) age of the offender; & (7) any other factor in mitigation of the offense.
Of course, the last factor is open ended. Fortunately, just last week the Court of Appeals addressed this in Wilson v. Commonwealth (a decision discussing the limits on a judges's ability to suspend a sentence under 19.2-303). Discussing § 19.2-264.4 the Court states that the "common thread" of the "facts in mitigation" is that "while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed."
So, a defendant cannot introduce extraneous evidence (family, job, &cetera) or evidence which impacts legal culpability.2 Only factors which weigh on the morality of the defendant's role in the illegal act are allowed.3
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1 The Court also cites Pierce v. Commonwealth as finding "testimony that defendant was a "good upstanding citizen" and a "loyal and loving son" relevant", however Pierce had nothing to do with the relevance of that evidence. It found that a defendant can present evidence during a sentencing hearing even if the prosecution has not. Even had it ruled that evidence relevant, Pierce was a Court of Appeals case decided 3 years before the Supreme Court's Shiflett and would seem to have been overruled.
2 There is at least one exception to this. Accomodation lessens legal culpability for drug distribution in Virginia and it is supposed to be argued in the jury sentencing phase.
3 Defense evidence pertaining to the defendant's record is also allowed, per Shiflett. This may relate to the morality of the offender's participation in the offense or may simply be allowed as rebuttal to the prosecution's introduction of defendant's prior record.
.
19 August 2009
Virginia Cases of Interest
I was browsing through the Virginia Court of Appeals and these are the cases which caught my interest:
Brown v. Virginia, No. 1034-08-2 - A video is not subject to the best evidence rule and therefore an individual can testify as to what he saw by watching the tape and the tape need not be introduced. **In a footnote the Court of Appeals acknowledges that it is ruling contrary to federal understanding of this rule of evidence and the rule as applied in 42 States.**
Atkins v. Commonwealth, No. 1502-08-2 - An offender running away from officers and lying as to his name does not qualify as obstruction of justice under Virginia's statute.
Turner v. Commonwealth, No. 1836-07-1 - The Court of Appeals grants a Writ of Actual Innocence based upon a co-defendant taking all the blame after conviction of both. (I think this one is being redecided en banc)
Cooper v. Commonwealth, No. 1392-08-3 - If the Commonwealth gets a continuance because a necessary witness cannot currently testify in view of the fact she is awaiting trial herself it is not prejudicial to the defendant and therefore not an abuse of the trial judge's discretion.
Scott v. Commonwealth No. 1557-07-2 - Ohio found Scott guilty of violating his Virginia probation and sentenced him to serve 6 months of the suspended Virginia sentence in Ohio prison. After serving his time in Ohio, Scott was extradited to Virginia. The Virginia court found Scott guilty of violating his probation and gave him two years. Scott appeals, stating that he'd already been punished for violating his probation by Ohio. The Court of Appeals points out that Ohio didn't have any right to do such a thing and upholds the Virginia sentencing.
Jones, Jr. v. Commonwealth, No. 1802-08-1 - Updates and follows Shiflett.
Wilson v. Commonwealth, No. 1775-08-2 - Elaboration on the ability of a judge to alter a sentence under 19.2-303.
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The last two are cases I'm probably going to post more extensively about - hopefully next week. Wilson in particular interests me. I usually think that Judge Humphreys' opinions are among the best our appellate court puts out, but a quick read of this one bothers me. I'll have to digest it for a bit and post my thoughts later.
Brown v. Virginia, No. 1034-08-2 - A video is not subject to the best evidence rule and therefore an individual can testify as to what he saw by watching the tape and the tape need not be introduced. **In a footnote the Court of Appeals acknowledges that it is ruling contrary to federal understanding of this rule of evidence and the rule as applied in 42 States.**
Atkins v. Commonwealth, No. 1502-08-2 - An offender running away from officers and lying as to his name does not qualify as obstruction of justice under Virginia's statute.
Turner v. Commonwealth, No. 1836-07-1 - The Court of Appeals grants a Writ of Actual Innocence based upon a co-defendant taking all the blame after conviction of both. (I think this one is being redecided en banc)
Cooper v. Commonwealth, No. 1392-08-3 - If the Commonwealth gets a continuance because a necessary witness cannot currently testify in view of the fact she is awaiting trial herself it is not prejudicial to the defendant and therefore not an abuse of the trial judge's discretion.
Scott v. Commonwealth No. 1557-07-2 - Ohio found Scott guilty of violating his Virginia probation and sentenced him to serve 6 months of the suspended Virginia sentence in Ohio prison. After serving his time in Ohio, Scott was extradited to Virginia. The Virginia court found Scott guilty of violating his probation and gave him two years. Scott appeals, stating that he'd already been punished for violating his probation by Ohio. The Court of Appeals points out that Ohio didn't have any right to do such a thing and upholds the Virginia sentencing.
Jones, Jr. v. Commonwealth, No. 1802-08-1 - Updates and follows Shiflett.
Wilson v. Commonwealth, No. 1775-08-2 - Elaboration on the ability of a judge to alter a sentence under 19.2-303.
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The last two are cases I'm probably going to post more extensively about - hopefully next week. Wilson in particular interests me. I usually think that Judge Humphreys' opinions are among the best our appellate court puts out, but a quick read of this one bothers me. I'll have to digest it for a bit and post my thoughts later.
18 August 2009
17 August 2009
Finding Other Law Grads Gainfully Employed
So, I'm puttering around the web trying to find something worth blawging about. The federal supreme court isn't going to be putting out anything interesting for a while. The most interesting case that the Virginia court of appeals decided last week can be boiled down to one phrase: No matter how poor the case against you was and the number of errors made you don't get to appeal if you don't object and make the appropriate motions to strike the evidence. Nothing earth shattering there; the court of appeals has probably said as much 100 times. One of the guys in my office wants me to write about Virginia Supreme Court Rule 7C:5(f), but I just can't see too many of ya'll being interested in the vagaries of misdemeanor discovery rules in Virginia. Besides, if I research and write that post I either have to take the side of a person in my office whom I know reads this blawg or a judge whom I know reads this blawg.
Then I trip across an entry in the VLW blog which points to a law classmate (Chuck James) of mine's involvement in defending a sheriff who is being prosecuted by the federal government. Chuck is quoted as making the dreaded "green beans with spaghetti" argument. For the record, I agree with Chuck that they don't go together, but I must admit that didn't stop my high school from serving such a travesty against the gods of taste (actually, it was usually worse: lima beans and canned spaghetti). Still, the rejoinder made by the federal prosecutor has a pretty nasty flaw: "If you’re trying to get youngsters to eat green vegetables spaghetti and green beans DO go together."
Wait. Wait a sec . . . Did he just say "If you're trying to convict on weak charges they should be mixed with the strong ones so the jury will just convict on everything"? Arrrggg. That's got to be a statement he wished he could have back. A better prosecutorial argument (if we must stick to a pasta theme) would have been: "What we have here, judge, is a spaghetti dinner. There are no green beans here. What the defense is trying to do is separate the pasta, and the sauce, and the meatballs, and the parmesan cheese. He's trying to make it unrecognizable for the dinner it is."
Of course, Tom Bondurant was in court commenting off-the-cuff on an argument he had just heard. I'm sitting comfortably in my kitchen drinking a diet pepsi as I compose my answer. Were my circumstances switched with the top-dog federal criminal prosecutor in the Western District, I'm not certain I'd have done better (and he'd probably be real confused as to why he was in my kitchen).
Anyway, for those of you who don't know him, Chuck is the first gentleman in this pack of lawyers walking into the courthouse.
It's a terrible picture; here's the news video it came from.
Anyway, it's good to see someone from my class involved in an interesting case. Since I'm now on the side of the angels, I cannot wish him good luck at trial, but I doubt he needs my luck behind him anyway. :-0
Then I trip across an entry in the VLW blog which points to a law classmate (Chuck James) of mine's involvement in defending a sheriff who is being prosecuted by the federal government. Chuck is quoted as making the dreaded "green beans with spaghetti" argument. For the record, I agree with Chuck that they don't go together, but I must admit that didn't stop my high school from serving such a travesty against the gods of taste (actually, it was usually worse: lima beans and canned spaghetti). Still, the rejoinder made by the federal prosecutor has a pretty nasty flaw: "If you’re trying to get youngsters to eat green vegetables spaghetti and green beans DO go together."
Wait. Wait a sec . . . Did he just say "If you're trying to convict on weak charges they should be mixed with the strong ones so the jury will just convict on everything"? Arrrggg. That's got to be a statement he wished he could have back. A better prosecutorial argument (if we must stick to a pasta theme) would have been: "What we have here, judge, is a spaghetti dinner. There are no green beans here. What the defense is trying to do is separate the pasta, and the sauce, and the meatballs, and the parmesan cheese. He's trying to make it unrecognizable for the dinner it is."
Of course, Tom Bondurant was in court commenting off-the-cuff on an argument he had just heard. I'm sitting comfortably in my kitchen drinking a diet pepsi as I compose my answer. Were my circumstances switched with the top-dog federal criminal prosecutor in the Western District, I'm not certain I'd have done better (and he'd probably be real confused as to why he was in my kitchen).
Anyway, for those of you who don't know him, Chuck is the first gentleman in this pack of lawyers walking into the courthouse.
It's a terrible picture; here's the news video it came from.
Anyway, it's good to see someone from my class involved in an interesting case. Since I'm now on the side of the angels, I cannot wish him good luck at trial, but I doubt he needs my luck behind him anyway. :-0
16 August 2009
Around the Blawgs
1) Skelly is gone. :`(
2) And so is Feddie.
3) Scott's still baiting lawprofs, making fun of marketers, and telling them dang worthless kids to get off his lawn and go work for a living.
4) Mark is slowly unfolding his "How to treat a jury" exposition.
5) How loud do you have to yawn to be found in contempt?
6) You're liable if you call the police during a robbery and someone is killed in the ensuing shootout?
7) I'm not sure that allowing 18 year olds to drink will discourage "binge" drinking - especially since "binge" drinking has been redefined by prohibitionists from a multi-day bender to a fairly normal 5 drinks (4 if you're female) - but here's an interesting post about whether the federal blackmail requiring the drinking age to be 21 might be unconstitutional.
8) Windy wants you to support a Feminazi scumbag.
9) Who needs permission for a DUI blood test? In Kentucky you just wait until they're asleep . . .
10) Yep, California, the land that pioneered marijuana hang-nail therapy. (You know it's bad when NPR is calling them out)
2) And so is Feddie.
3) Scott's still baiting lawprofs, making fun of marketers, and telling them dang worthless kids to get off his lawn and go work for a living.
4) Mark is slowly unfolding his "How to treat a jury" exposition.
5) How loud do you have to yawn to be found in contempt?
6) You're liable if you call the police during a robbery and someone is killed in the ensuing shootout?
7) I'm not sure that allowing 18 year olds to drink will discourage "binge" drinking - especially since "binge" drinking has been redefined by prohibitionists from a multi-day bender to a fairly normal 5 drinks (4 if you're female) - but here's an interesting post about whether the federal blackmail requiring the drinking age to be 21 might be unconstitutional.
8) Windy wants you to support a Feminazi scumbag.
9) Who needs permission for a DUI blood test? In Kentucky you just wait until they're asleep . . .
10) Yep, California, the land that pioneered marijuana hang-nail therapy. (You know it's bad when NPR is calling them out)
13 August 2009
11 August 2009
Prosecution Argument at Sentencing
In Virginia after a defendant is found guilty of a crime there is a jury sentencing hearing and, of course, argument from both sides as to what the appropriate sentence should be. Here's my sentencing argument from my jury last Friday.
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Thank you, Judge.
Ladies and gentlemen, there are generally four reasons we put somebody in prison or jail. The first is what everybody calls retribution, basically just punishment. The second is to keep them away from people, to keep them from being able to do anything. The third is to teach the lesson to other people; they see what happened to somebody and they don't do it themselves. The fourth is rehabilitation. I'd ask you to keep all these in mind when you go in the back and try to decide all this.
Now I'm going to tell you, I don't know what this ten months in Texas was. The conviction records I'm handing up to you are all from Virginia. As the defendant himself testified, apparently if you commit a felony in Texas and you do something right, they take it off your record. I don't know how that works; I'm a lawyer in Virginia, not Texas, but apparently he spent ten months in jail in Texas. So, I don't think, to be honest with you, that rehabilitation is going to happen. You may disagree with me on that and that's you privilege. I really don't think going to jail or prison is going to rehabilitate him.
So, the questions then come down to, if you're a person who believes in straight punishment,what punishment's appropriate. And you should weigh what both Dad and Step-Mom have said. And you should also weigh the fact that he's been to jail for ten months in Texas and then came up here and did this. So ten months didn't stop him. So, you weigh his prior record and everything in and you might think how much punishment he's due.
Stopping him from doing something like this again. Well, obviously as long as he's in jail or prison he's not going to be doing this again. How long he needs to be away to accomplish that, again I leave to you.
The last thing, of course, is setting an example for others. You know, a lot of people believe in standing up here and banging on the table and saying "Send a message! Send a message!" Well, I'm not going to feed you that line, because this is a family thing. Now, whatever happened in Texas or his drug possession charges, those might have been send a message charges. This is family and as much as I think he needs a stiff sentence, his family has asked for less.
I think, and I've tried any number of juries in my career, I think personally that finding guilt or innocence is the easier part of the trial. Setting an appropriate sentence is incredibly difficult and I don't know if we ever get it 100% right. Like I said, my thoughts would be to ask you for a lot of time. 10 months didn't work; my thoughts would be to ask for more than that. His parents, his father and step mother have asked you for less than that. Balance all that in, ladies and gentlemen.
There are different ways that different people think punishment should be set. I've heard people stand up and say that for every $100 stolen a month should be given in jail - that would be 15 months in this case. I probably would have asked for, in this case, two years, but that's another issue.
I just ask you to take serious thought as to what good you are going to do the community through this sentence and please do your best with it. Thank you.
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As you might be able to tell, we don't get the over night break that the prosecutors in Law and Order always seem to get in order to put their arguments in proper order. It's pretty much extemporaneous exposition and every time I read one of my arguments I see errors, things I forgot, and things that don't make sense when you just read them. Still, at least when I was in the moment the argument seemed to be flowing well and connecting with the jury (although, for all I know, they may have thought me an idiot and ignored everything I said in their deliberations).
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Thank you, Judge.
Ladies and gentlemen, there are generally four reasons we put somebody in prison or jail. The first is what everybody calls retribution, basically just punishment. The second is to keep them away from people, to keep them from being able to do anything. The third is to teach the lesson to other people; they see what happened to somebody and they don't do it themselves. The fourth is rehabilitation. I'd ask you to keep all these in mind when you go in the back and try to decide all this.
Now I'm going to tell you, I don't know what this ten months in Texas was. The conviction records I'm handing up to you are all from Virginia. As the defendant himself testified, apparently if you commit a felony in Texas and you do something right, they take it off your record. I don't know how that works; I'm a lawyer in Virginia, not Texas, but apparently he spent ten months in jail in Texas. So, I don't think, to be honest with you, that rehabilitation is going to happen. You may disagree with me on that and that's you privilege. I really don't think going to jail or prison is going to rehabilitate him.
So, the questions then come down to, if you're a person who believes in straight punishment,what punishment's appropriate. And you should weigh what both Dad and Step-Mom have said. And you should also weigh the fact that he's been to jail for ten months in Texas and then came up here and did this. So ten months didn't stop him. So, you weigh his prior record and everything in and you might think how much punishment he's due.
Stopping him from doing something like this again. Well, obviously as long as he's in jail or prison he's not going to be doing this again. How long he needs to be away to accomplish that, again I leave to you.
The last thing, of course, is setting an example for others. You know, a lot of people believe in standing up here and banging on the table and saying "Send a message! Send a message!" Well, I'm not going to feed you that line, because this is a family thing. Now, whatever happened in Texas or his drug possession charges, those might have been send a message charges. This is family and as much as I think he needs a stiff sentence, his family has asked for less.
I think, and I've tried any number of juries in my career, I think personally that finding guilt or innocence is the easier part of the trial. Setting an appropriate sentence is incredibly difficult and I don't know if we ever get it 100% right. Like I said, my thoughts would be to ask you for a lot of time. 10 months didn't work; my thoughts would be to ask for more than that. His parents, his father and step mother have asked you for less than that. Balance all that in, ladies and gentlemen.
There are different ways that different people think punishment should be set. I've heard people stand up and say that for every $100 stolen a month should be given in jail - that would be 15 months in this case. I probably would have asked for, in this case, two years, but that's another issue.
I just ask you to take serious thought as to what good you are going to do the community through this sentence and please do your best with it. Thank you.
-------------
As you might be able to tell, we don't get the over night break that the prosecutors in Law and Order always seem to get in order to put their arguments in proper order. It's pretty much extemporaneous exposition and every time I read one of my arguments I see errors, things I forgot, and things that don't make sense when you just read them. Still, at least when I was in the moment the argument seemed to be flowing well and connecting with the jury (although, for all I know, they may have thought me an idiot and ignored everything I said in their deliberations).
.
10 August 2009
Sometimes You Look Back & Realize What a Snit You Were Being
There are times you look back at your behaviour and feel like kicking yourself.
Jury on Friday was credit card theft with Defendant stealing from Dad & Step-Mom. Defense Counsel wants Dad to testify during the sentencing phase of the jury trial, because he knows Dad is a reluctant witness who doesn't really want his son to go to jail. However, under Virginia case law Defense Counsel is clearly not allowed to present evidence of anything other than that which lessens his prior record or diminishes, but does not negate culpability for the current crime. Family wishes and effect on the family are clearly not allowed. See Shifflet and (last month) Jones Jr.. We argue back and forth on this with me pointing to the rule set out in the cases and Defense Counsel trying to play the precedent down by claiming the decisions just said the judge hadn't abused his discretion so the judge didn't have to follow the precedent. At one point the judge said something off the cuff about "Isn't family continuity one of the goals of Virginia law?" Anyway, after a while the argument shifted and Defense Counsel started arguing that he didn't want to call Dad because he was family, but because he was the victim. I point out that the statute only authorizes the prosecution to introduce victim evidence during the sentencing, thus excluding the defendant from doing so. In the end, the judge allows Defense Counsel to call Dad, "just to ask him what he thinks an appropriate sentence would be."
Faced with that, I introduce the defendant's prior convictions and the call Step-Mom to the stand. Defense Counsel objects and we go up to the bench to argue the point where the jury cannot hear us. Now, I've got a clear statutory allowance to "present any victim impact testimony" and she's as hooked into the checking account as her husband. I can just stand there and point at the statute and I should win the argument. Is that what I did?. Nope. When Defense Counsel objects because Dad's name is on the checking account, not Step-Mom's, I let out, "Judge, I thought we in family harmony mode, kumbyaland . . ." At which point Defense Counsel bows to my keen legal argument and withdraws his objection.
Jury on Friday was credit card theft with Defendant stealing from Dad & Step-Mom. Defense Counsel wants Dad to testify during the sentencing phase of the jury trial, because he knows Dad is a reluctant witness who doesn't really want his son to go to jail. However, under Virginia case law Defense Counsel is clearly not allowed to present evidence of anything other than that which lessens his prior record or diminishes, but does not negate culpability for the current crime. Family wishes and effect on the family are clearly not allowed. See Shifflet and (last month) Jones Jr.. We argue back and forth on this with me pointing to the rule set out in the cases and Defense Counsel trying to play the precedent down by claiming the decisions just said the judge hadn't abused his discretion so the judge didn't have to follow the precedent. At one point the judge said something off the cuff about "Isn't family continuity one of the goals of Virginia law?" Anyway, after a while the argument shifted and Defense Counsel started arguing that he didn't want to call Dad because he was family, but because he was the victim. I point out that the statute only authorizes the prosecution to introduce victim evidence during the sentencing, thus excluding the defendant from doing so. In the end, the judge allows Defense Counsel to call Dad, "just to ask him what he thinks an appropriate sentence would be."
Faced with that, I introduce the defendant's prior convictions and the call Step-Mom to the stand. Defense Counsel objects and we go up to the bench to argue the point where the jury cannot hear us. Now, I've got a clear statutory allowance to "present any victim impact testimony" and she's as hooked into the checking account as her husband. I can just stand there and point at the statute and I should win the argument. Is that what I did?. Nope. When Defense Counsel objects because Dad's name is on the checking account, not Step-Mom's, I let out, "Judge, I thought we in family harmony mode, kumbyaland . . ." At which point Defense Counsel bows to my keen legal argument and withdraws his objection.
09 August 2009
Cross Examination: Convicted in Texas, but Apparently not Virginia
On Friday, I was cross examining the defendant in a case and asked him about his felony record:
Q: Have you been convicted of a felony in Virginia?
A: No. not in Virginia . . .
Q: Well, have you been convicted of a felony in another State?
A: I don't know how to answer that question. According to that piece of paper, I haven't. I don't know what to say.
Q: You're under oath. You're supposed to tell the truth.
A: Well, I was convicted in Texas, but that was supposed to go away.
.
Q: So, you were convicted of a felony in Texas?
A: Yes, but after I spent my time in jail it was supposed to go away.
Q: Have you been convicted of a felony in Virginia?
A: No. not in Virginia . . .
Q: Well, have you been convicted of a felony in another State?
A: I don't know how to answer that question. According to that piece of paper, I haven't. I don't know what to say.
Q: You're under oath. You're supposed to tell the truth.
A: Well, I was convicted in Texas, but that was supposed to go away.
.
Q: So, you were convicted of a felony in Texas?
A: Yes, but after I spent my time in jail it was supposed to go away.
04 August 2009
Action & Reaction: Virginia Altering Ethics Rules for Prosecutors
By changing constitutional law in Montejo, the federal supreme court fundamentally altered the realities of interrogations. In so doing, it left prosecutors in a precarious position. The generic ethical rule does not allow communication with a defendant once she has counsel. However, there are no longer any protections of the defendant until she announces that she will not talk without her lawyer present - irregardless of whether an attorney has been appointed/hired. Where does this leave the prosecutor? Is he disabled from doing what he can constitutionally by ethics obligations? What if an officer has heard about Montejo and asks if he can talk to a defendant who already has an attorney appointed? Are we supposed to mislead the officer as to what he's allowed to do because of the Bar's ethics rules?
The Virginia State Bar is stepping into the breach with a proposed change to the comment section of Rule 4.2: Communication With Persons Represented By Counsel
However, the first change is more problematic. It's very ambiguous. "Prior to the attachment of right to counsel" leaves open the question of when the right to counsel attaches. Per Montejo it would seem to attach at the moment the defendant asserts her right to counsel during questioning, whether or not counsel had previously been hired/appointed. However, during the initial pre-trial hearing the judge is supposed to determine what the defendant is going to do about an attorney, and appoint counsel to anyone who is indigent. A not insignificant argument can be made that this is when the right attaches (assuming the defendant has not demanded counsel during earlier questioning). Personally, I wouldn't mind the second interpretation too much. Since I can't be a witness, I really don't need to be talking to the defendant anyway. Still, the Bar should tighten that language up some.
The Virginia State Bar is stepping into the breach with a proposed change to the comment section of Rule 4.2: Communication With Persons Represented By Counsel
[5] In circumstances where applicable judicial precedent has approved investigative contactsThe second change to the comment is unambiguous. A prosecutor can advise officers as to the current limits of the law.in pre-indictment, noncustodial circumstancesprior to attachment of the right to counsel, and they are not prohibited by any provision of the United States Constitution or the Virginia Constitution, they should be considered to be authorized by law within the meaning of the Rule. Similarly, communications in civil matters may be considered authorized by law if they have been approved by judicial precedent. This rule does not prohibit a lawyer from providing advice regarding the legality of an interrogation or the legality of other investigative conduct.
However, the first change is more problematic. It's very ambiguous. "Prior to the attachment of right to counsel" leaves open the question of when the right to counsel attaches. Per Montejo it would seem to attach at the moment the defendant asserts her right to counsel during questioning, whether or not counsel had previously been hired/appointed. However, during the initial pre-trial hearing the judge is supposed to determine what the defendant is going to do about an attorney, and appoint counsel to anyone who is indigent. A not insignificant argument can be made that this is when the right attaches (assuming the defendant has not demanded counsel during earlier questioning). Personally, I wouldn't mind the second interpretation too much. Since I can't be a witness, I really don't need to be talking to the defendant anyway. Still, the Bar should tighten that language up some.
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