Small Town Officer v. Big City Lawyer

Pitcairn County: Suppresion Hearing

Sometimes it is interesting to see different perceptions of reality clash in the courtroom. Big City Attorney has traveled several hours from Metropolis to the the County of Pitcairn.  He's there to defend a possession charge in which the main argument is over whether the initial stop was constitutionally valid.  Part of the reason for the stop is that the car pulled into the driveway of a residence in the Town of Erehwon which was not the driver's residence.

Me:  Officer, do you know what vehicle belongs to the resident of 123 Plum Street, in the town of Erehwon?

Officee:  Yes, sir.  It is a green VW Thing.

Me: And what type of vehicle did you see pull into that driveway at 3 am on 29 February 2010?

Officer:  It was a blue Jeep Cherokee.

.....

On Cross

Big City Attorney:  So, you knew that the owner of that house had a green Volkswagen Thing?

Officer:  Yes sir.

Big City Attorney, leaning in, sensing a gotcha:  So, what kind if car does the owner of the house to the right of this one have?

Officer:  A yellow Toyota pickup.

Big City Attorney, a little surprised, but still game:  Okay, what type of car does the owner on the other side of house have?

Officer:  A silver Dodge Ram.

Big City Attorney: Okay, are you trying to tell the court that you know what car belongs at every house in Erehwon?

Officer, looking a little confused by the question: Well, yes sir. There are only about 100 houses in town and I patrol for twelve hours every night. I know what cars belong at what houses.

–––––––––––––
Maybe my sense of humor is a bit askew, but I found it amusing how hard it was for Big City Lawyer to conceive of an officer knowing every car in town and how inconceivable it was to the officer that he wouldn't.

Castle Doctrine: the 2012 Disposition

Virginia's General Assembly has been considering and reconsidering the possibility of passing a statutory Castle Doctrine.  Generally, the statutes which they have considered have been recapitulations of the common law protections which Virginians already have. I addressed this in depth back in 2010 and the current 2012 attempt was almost exactly the same, although I thought it was going to pass this year.

It didn't.

The House of Delegates passed the statute in this form:

§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense. 

Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling [ without the permission of said occupant ] , having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury. 

STRUCK 

[ Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries to or death of the other person who has unlawfully entered the dwelling that results from the use of such force. ]

However, the Senate passed a slightly different version of the statute:

§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense 

Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when (i) the other person has unlawfully entered the dwelling and has committed an overt act toward the occupant or another person in the dwelling and (ii) the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury. 

Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries or death of the other person who has unlawfully entered the dwelling that results from the use of such force.

The House of Delegates refused to pass the Senate version by a vote of 97 against and 2 in favor. Then the Senate refused to accept the House's version 40 against and 0 in favor. The Senate has now sent the bill back down to the Courts of Justice Committee and put it off to next year.

Obviously, the difficulty has got to be in the last paragraph. The House does not want it for some reason. The strange thing about that is that a bill which has passed both the House and Senate already does what the second paragraph aims toward.

§ 8.01-223.3. Immunity for persons acting in defense of property. 

Any person who lawfully occupies a dwelling and uses any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling without the permission of said occupant, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury, shall be immune from civil liability for injuries to or death of the other person who has unlawfully entered the dwelling that results from the use of such force. 

Nothing in this section shall either form the basis for a jury instruction or be offered as evidence of criminal liability or lack thereof in a criminal proceeding.

So, in Virginia, as of 01 July 2012, the General Assembly has said that a person cannot be sued for killing or injuring someone in his house when he acts in defense of self or others. There's not exactly anything new about this.  If you kill someone in self defense you should win your law suit right now. It's just that now there will be a statute backing you up. Of course, since "[n]othing in this section shall . . . form the basis for a jury instruction" you won't be able to use the statute to tell the jury you shouldn't be found guilty, so I'm not sure what the statute accomplishes.

Anyway, the Castle Doctrine drama is put to bed for 2012.  There's always next year.

The World's Best Car Defense System

Good Easter

Pornland: A Review

Every so often, I forget what it's like to read the kind of faux intellectual treatises that exist at the edge of the social studies in universities and colleges. Then, I read a book like Pornland and it all comes crashing back upon me.

PornLand is a feminist attack on the effect of porn on society. Fine, porn's bad; got the message. However, the book suffers from mixed plots and a fractured philosophical base. The mixed plot lines are (1) the sexualization of society at large leading to the unsatisfactory objectification of women, and (2) the rise of the internet leading to the greater availability of "gonzo" porn (extreme kink). She tries to tie these together, but does not do so very successfully. The first is her actual argument while the second is an emotionally charged overlay. Often, it feels as though she is making an argument based on the first plot line and heavy-handedly beating down any argument against her by pointing to gonzo porn in an attempt to put opponents in a position that objection would require them to be seen as defending gonzo porn. As an intellectual exercise it fails. The crux of its failure comes from her perception and treatment of the male.

In the Beginning: In order to analyze this sort of subject, some sort of model should be developed. There are two obvious models which could have been adopted for this analysis. The first is the competition for male attention model.

No self respecting feminist is going to adopt this model for analysis because (1) it implies a need for the male, and (2) because women win in this analysis, thus negating the need for the anti-porn argument in the main. Porn may draw male attention, but the continuing large scale presence of marriage, child birth, and even prostitution in society indicate that the draw to actual women is stronger.

The second model is the overlapping influences model.

This is the model that I expected to see in this book. Instead, what we get is a fractured view of this which presents the female and porn, but leaves a big hole where anything inherently masculine would be. This can be seen thru this passage in her introduction:

[A]cts that are part of many people’s sexual experience, such as kissing, caressing, cuddling, and fondling, are noticeably absent in pornography. This forces us to ask why men who view porn are so attracted to images that depict types of behavior so at odds with the real world. One obvious answer could be that men go to porn as a way to play out a fantasy, a way to conjure up mental images that are not real but nonetheless pleasurable. But if it were as simple as this, then why isn’t there an equal amount of porn that depicts women and men having great sex that involves deep connection and intimacy, with women having fabulous orgasms brought about by a highly skilled male lover who has an intuitive understanding of women’s bodies?"

The obvious answer to this is that that is a stereotypically female view of sex. Note that the majority of that scenario would be found in most porn portrayals of sex. Sex in porn is portrayed as "great" and women almost invariably portrayed as "having fabulous orgasms" brought about by a male sex partner who gives the woman what she wants. The feminine perspective involves the "lover" and sex involving a "deep connection and intimacy." At core, her argument is that porn lacks these elements and society has sympathetically adopted this lack thru porn.

However, she refuses to admit to any core "maleness" which allows or encourages porn's existence. This failure is a core part of her worldview. We are told that porn portrays men "as soulless, unfeeling, amoral life-support systems for erect penises who are entitled to use women in any way they want.' In other words there is no there there. Males are empty vessels except that they are attached to their sexual organs. It's a fairly accurate portrayal of the way that men are depicted in sex films. Sadly, she adopts a very similar stance as her personal view of men in her 4th chapter. There is no male there; there is only cultural training. it is only because men are trained to be that they are competitive and aggressive and through this training they become anti-female and therefore mutually turn to porn and are drawn by it. Males are empty vessels except as society trains them to be evil.

Into this massive failure of understanding (the blank male) she wants to pour her value laden depiction of how sex should be (the fulfilled female). The blank male should be directed away from porn and instead be filled with a "counter-ideology to porn . . . disrupt[ing] and interrupt[ing] its messages, and . . . as powerful and as pleasurable as porn, telling men that porn’s image of women is a lie, fabricated to sell a particular version of sex. This alternative ideology would also need to present a different vision of heterosexual sex, one built on gender equality and justice."

At a certain point, having established porn as the evil that corrupts blank males and denies females of their fulfillment through their version of sex, the author begins the bait and switch parts of the book. In particular, she begins this in earnest in chapter 6.

Here, she switches from porn to a discussion of dominant sexual mores as sexual repression of women that have become internalized and destructive to women, but continues to describe this as arising from porn without establishing more than a tenuous connection. The modern mores (which she calls the hookup culture) come from TV, movies, magazines, celebrities, &cetera that push women toward attempting to make their bodies attractive to men sexually and participating in sex (hookups) thus falling far short of her proffered stereotypical female ideal of sex.

[RANT]
A seriously disturbing part of this chapter is where she misdefines rape as "unwanted sex." This is an egregious and purposeful distortion of what rape is. Rape is sex without consent. Lack of consent occurs when (1) the victim is incapable of consent due to (a) age or (b) mental incapacity (to include extreme intoxication), or (2) the victim's resistance is overborne by (a) force or (b) threat of force. ACQUIESCENCE AGAINST PREFERENCE IS NOT RAPE. Having sex "because that's what you do when you go back to a guy's apartment" or "because he wouldn't stop bugging me about it" or "despite the fact I had a headache" or "because I thought it was my one shot at starting a relationship with him" or "because my friends pressured me into it" or "despite the fact that he stunk after he took his shirt off" and a vast multitude of other situations where the sex was unwanted, but consented to, IS NOT RAPE. To be fair, the author is not the creator of this myth, but she is supposed to be a professional in this sociological area and therefore should not be spreading the myth.
[/RANT]

This chapter is where we see the author's true grievance break through. "When feminists in the 1960s and ’70s fought for sexual liberation, they fought for the right to want, desire, and enjoy sex—but on their own terms. They argued that their sexuality had been defined by men, and they wanted it back." The simple phrase "on their own terms" gives the masquerade away. It also explains her strong preference for the blank male. She sees a society wherein women broke free from sexual norms of the society so that they could become the sole actors in determining sexuality. However, in order for her sexual paradise to occur there can be no push back, no Hegelianistic dialectical materialism. The thesis of sex on feminine terms can only succeed if there is no male antithesis and thus no synthesis. This requires the blank male. But here we also see a breakdown in her assertion of the entirely socially programmable blank male.

Immediately after her assertion of the goal of female sexual utopianism, she acknowledges the synthesis (if not the antithesis). "One of the men interviewed by Bogle said he saw hookup culture as a 'guy’s paradise.' Yes, Pornland is indeed paradise for these men, as it is sex with no strings attached. And for women it is business as usual: men defining our sexuality in ways that serve them, not us. Only now this sexuality is sold to us as empowering. A new twist on an old theme."

In both the assertion that women in the 60's and 70's broke free from sexuality defined by men and in the assertion that the modern era's sexual mores are a "paradise for men, as it is sex with no strings attached" there is an admission that men have pushed sexuality in a direction because of something other than the blank male's programmed interest. There is an internal actor within the male. This internal male in the older paradigm would probably be described as competitive / possessive (socially acceptable sex for females restricted to marriage) and the internal male in the current paradigm would probably be competitive / abandoning (the hookup culture). However, this is something of inference on my part because the internal workings of the male as she obliquely admits to them can only be seen through the shadow their antithesis casts on the synthesis.

After having made her point there are two more chapters in the book, both of which feel as though they were added as an afterthought or filler (maybe her publisher told her more pages were needed). In chapter 7 the author talks about racism within the porn industry, in the advertising and sale of interracial porn, and in its consumers. This last point is highlighted in a direct comparison of blackface minstrel shows with interracial porn because both let the white man perceive himself as a black man acting in a manner unacceptable for white men. She scores solid points in pointing to the racism rife in the industry and consumption, but seems to be out on a limb with the minstrel comparison.

Chapter 8 is about the youthification of porn. It is about the porn wherein young women dress and act like underage girls. She tries mightily to tie this to actual child porn, but doesn't quite get there. The best she can do is interview men convicted of downloading child porn and paint all males with a broad brush based upon their answers. Then she goes on to point out connections between child porn and child sexual abuse. This weak connection backed by powerful emotional images is good propaganda, but not well reasoned argument. Mind you, my gut tells me she is right - I just don't think she proved it. Then, at the end of the chapter she shoots herself in the foot by trying to connect all this to the clothes which are sold for young girls. Much like chapter 6 this is a bait and switch. All this near child porn, actual child porn, and sexual abuse of children is abhorrent, but there's no connection between them and the clothes being sold for young girls (unless we are to believe that manufacturers producing the product, merchants selling the product, and parents buying the product are all avid child porn watchers). More likely, the clothes fashions are influenced by music videos, television shows, celebrities and a variety of other sources which do not tie into child porn.

She concludes that women should fight porn, offers a couple of programs she has been involved in and then turns again to the male role.

A movement that resists the porn culture needs to include men as they, too, are being dehumanized and diminished by the images they consume. Men’s refusal to collaborate with the pornographers will not only undermine the legitimacy of the industry, it will also drain it of its profits. For too long women have been the only ones fighting this predatory industry, even though we have long argued that porn also hurts men. What to porn offers men is a sexuality that celebrates connectedness, intimacy, and empathy—a sexuality bathed in equality rather than subordination.

In other words, males should abandon porn in order to perfect sexuality in its stereotypical female perception. It's not exactly a strong, primal incentive.

------------------

This book suffers from several flaws. The worst of these is the blank male. The author proffers a stereotypical female perspective on sex, but does not try to address that within the male which draws him to porn. Her stereotypical female perspective is that sex is about becoming connected, intimate, and co-empathetic; in other words, it has a relationship orientation. A corresponding stereotypical male perspective on sex is that it is success in a competitive act (getting the female to choose him over other males) which sees the female as an objective and a means of hedonistic fulfillment. Inherent in both these stereotypical perceptions is a flip side. For the female sex is not only relational, it is also physically pleasurable. For men success in the competition and the completion of the sexual act opens the door to connection, intimacy, and empathy which were not its initial goal.

The ignoring of any viable male perspective in this book is its major flaw. The assertion that the blank male only pursues porn because he is programmed to do so fails on its face. The lack of consideration of a male perspective also means that there is no realistic means offered to counter the male draw towards porn and objectification of the female.

As for me, I think I'd start any serious argument against the objectification of women by reference to the call to moral duty found in Mulieris Dignitatem.

The dignity and the vocation of women - as well as those of men - find their eternal source in the heart of God. And in the temporal conditions of human existence, they are closely connected with the "unity of the two". Consequently each man must look within himself to see whether she who was entrusted to him as a sister in humanity, as a spouse, has not become in his heart an object of adultery; to see whether she who, in different ways, is the cosubject of his existence in the world, has not become for him an "object": an object of pleasure, of exploitation.

You may disagree with the conclusions of Mulieris Dignatatem, but it provides a more solid groundwork to have this argument than Pornland ever could.

Dog (Search) Days of Florida

You'll all recall that back when the United States Supreme Court declared dog sniffs not to be searches I took umbrage. In fact, I even wrote an article for the NYU Journal of Law & Liberty. Interestingly, the greatest proponent of the infallible dog sniff, Justie O'Connor, and the author of the opinion, Justice Stevens, have both retired from the bench and now the US Supreme Court has accepted two dog sniff cases to be heard next term. I am curious to see whether the Court will take this opportunity to prune off the dog sniff branch of 4th Amendment Jurisprudence because it is so out of kilter with Kyllo, or if it is going to use it as an opportunity to defend and expand dog sniff availability. It could also split the baby and find that Kyllo is a protection of the home, not vehicles, and therefore no dog sniff or electronic device can be used outside a home, but that both could be used in other circumstances (cars, luggage, etc.).

In any event here are my summations of the two Florida cases on appeal:

Jardines v. Florida, APR11, SCtFla No. SC08-2101:

In Jardines, the Florida Supreme Court finds that a dog sniff at a house is a search (in contrast to a dog sniff of a car or luggage). The Court points to two factors: (1) The special emphasis the Home is given under the 4th Amendment as the place where a citizen's 4th Amendment right is strongest, and (2) the amount of intrusiveness involved in a dog sniff of a home.

The second factor is the actual point of the opinion. The Court points out that in all the luggage and vehicle cases there was minimal intrusive activity and potential for public embarrassment. Then it describes the activities the government undertook at this house:

Based on the foregoing, we conclude that the dog "sniff test" that was conducted here was an intrusive procedure. The "sniff test" was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement departments. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity—i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines' home—lasted for hours. The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident.

The Court goes on to further reason that because, unlike a vehicle sniff, there is no initial reasonable articulable suspicion required a home sniff "raises the specter of arbitrary and discriminatory application."

I think this has a good chance of surviving the US Supreme Court. It is well reasoned and sets out exactly why there is a difference between a home sniff and a vehicle or luggage dog sniff. However, the US Supreme Court could distinguish it on factual grounds. It could say, "Yes, this amount of activity was too much, but less obvious activity could make it valid."

Harris v. Florida, APR11, SCtFla No. SC08–1871:

In this case a dog alerted on a door of a vehicle and when the vehicle was searched the vehicle contained items which are used to make meth, but none of which the dog was trained to alert to. The officer did not keep records of any times when his dog had alerted and drugs had not been found. In this case, the officer insisted that the dog did not falsely alert, but that someone must have touched the door handle after handling meth and left an odor.

The Supreme Court of Florida rejects this as violating the 4th Amendment and sets out what the government must provide to establish probable cause in the courtroom after a dog sniff has been used on a vehicle:

we adopt a totality of the circumstances approach and hold that the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State's presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs [neither in Florida or the United States], the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog's reliability.

The Florida Court also goes on to state that the State cannot just say "The dog is trained and certified" and then require the defense to provide proof it cannot possibly have to disprove the dog's infallibility.

Remember, as long as the US Supreme Court sticks by its position that a dog sniff can't possibly reveal anything which isn't illegal, we're talking about probable cause here. While there is no exact definition of probable cause it is clearly less than 50% probable (otherwise the courts would be saying preponderance). I agree that the dog's record both in training and on the street should be introduced. However, if the dog is correct 5 out of 10 times, I think that probable cause is established. Then the question becomes, how far below 50% accuracy can a dog's record go before we decide it is too low? 40%? 35%? 20%?

Unless the US Supreme Court decides to scrap Cabelles completely, I think the fact that the dog was trained and yearly certified will probably get a stamp of approval for probable cause purposes and the Florida Supreme Court will be overturned on this case.

------

Of course, like everyone else, my ability to prognosticate the results from the US Supreme Court goes on the fritz some times. So, I guess you will all have to wait until next year to find out the exciting conclusion to the next step in the never ending dog sniff ain't a search saga.

Reasonable Articulable Suspicion to Pull Over Batman

Maryland police are brave enough to pull over Batman.

Police Dogs

In honor of the U.S. Supreme Court's acceptance of two dog sniff cases (Jardines and Harris), I thought I'd publish some pictures of our brave four legged friends with a badge.

Yes, You DO Have to Tell Your Client About the Plea Offer

Last week there were a couple of interesting cases about plea agreements fro the U.S. Supreme Court. In

Missouri v. Frye, MAR12, USSC No. 10-444, the prosecutor sent an offer to the defense attorney to reduce Frye's charge from a felony driving offense to a misdemeanor if Frye agreed to spend more time in jail. The attorney never took the offer to his client and subsequently Frye got convicted of the felony.  In Laflerv. Cooper, Mar12, USSC No.10-209, Cooper shot at a woman's head and missed and then, while she was running away, shot at her several times hitting her below the waist. He was offered a sentence of 51 - 85 months by the prosecutor, but his attorney told him he could not be convicted of attempted murder because the victim was not shot above the waist.  Consequently, Cooper was convicted and was mandated a sentence between 185 - 360 months.  It's not terribly surprising that both Frye and Cooper claimed that their attorneys were ineffective.

In Frye the government held firm and claimed, all the way to the Supreme Court, that because there is no constitutional guarantee of a plea offer there was no constitutional infirmity when the attorney did not tell his client about the plea offer.  The Supreme Court wasn't having any of that. Justice Kennedy wrote an opinion stating that an attorney not telling his client about a plea offer is ineffective assistance of counsel and therefore violate the right to counsel under the 6th Amendment. He set forth an exact test to be used.  If defense counsel does not inform his client of a plea offer (unreasonable behavior), in order to show prejudice the defendant must show (a) a reasonable probability they would have accepted the earlier plea offer and (b) a reasonable probability neither (i) the prosecution nor (ii) the trial court would have prevented the offer from being accepted or implemented. The Court remanded to the trial court expressing reservation as to whether Frye would pass part (b) of the test because, before coming to trial, Frye got arrested for the same felony driving offense a second time.

In Lafler the government seems to have conceded that telling someone that he couldn't get convicted of attempted murder because none of the bullet wounds were above the waist is ineffective assistance of counsel.  Therefore, the Court used this case to explain what the remedies are for ineffective assistance of counsel when it pertains to plea agreements.  If the plea offer was to keep the same charge, but to agree upon a lesser sentence, then

the remedy is for the trial court to have an evidentiary hearing and (a) determine if there is a reasonable probability that but for counsel’s errors the defendant would have accepted the plea and (b) then determine whether the defendant should (i) receive the term of imprisonment the government offered in the plea, (ii) the sentence he received at trial, or (iii) something in between.  If the plea offer was to change the change the charge, such as reducing it from a felony to a misdemeanor, or there was a mandatory sentence the judge had to impose after a trial, the prosecutor must re-offer the plea agreement and the judge will hold an evidentiary hearing to decided whether to impose the plea agreement or leave the conviction undisturbed.  Ine either evidentiary hearing, the trial court may consider (a) the defendant's previous willingness or unwillingness to accept responsibility for his actions and (b) any facts of the case which came to light after the plea offer had been made.

Of course, both of these remedies break Virginian laws and Rules of the Virginia Supreme Court, but I expect that constitutional rulings coming down from D.C. trump those. It will be interesting to see the changes to these laws and Rules adjusting to these cases.

Illegal to Marry After a Divorce in Virginia?

Sometimes while you are wandering around the statutes you find some interesting things.  I was looking at the bigamy laws when I tripped over Virginia Code §§ 20-38.1 and 20-39.

§ 20-38.1. Certain marriages prohibited.
 (a) The following marriages are prohibited:
 (1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
 (2) A marriage between an ancestor and descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;
 (3) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood.

----------

§ 20-39. Prohibition continues notwithstanding dissolution of previous marriage.
 In the cases mentioned in § 20-38.1, in which the relationship is founded on a marriage, the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce, unless the divorce be for a cause which made the marriage originally unlawful or void.

Now § 20-39 is obviously aimed at § 20-38.1(2) & (3), but it does not limit itself to those sub-sections.   The plain language of § 20-39 does require it to be applied to § 20-38.1(1). So, how does § 20-39 apply to § 20-38.1(1)?

First you must look at the language in § 20-39 "in which the relationship is founded on a marriage" and ask what relationship there is in § 20-38.1(1). There are only two possible relationships and a marriage before a divorce of a prior marriage is void ab initio so the only actual legal relationship is the "earlier marriage."

Now that we know the "relationship . . . founded on marriage" is the "earlier marriage" we must look to what restrictions are placed upon individuals in the earlier marriage by § 20-39.  This is very clear.  "[T]he prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce."  What prohibition?  The one in § 20-38.1: "The following marriages are prohibited."

As a consequence of all this, is it plain to see that the "earlier marriage" which is "founded on marriage" prohibits marriage "prior to the dissolution of an earlier marriage" and "the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce." Under § 20-39, the effect of the earlier marriage never ends, thus prohibiting a second marriage forever.

So, if someone gets divorced under Virginia law he or she is forbidden by law from marrying again.  The punishment?  Under § 20-40, "[i]f any person marry in violation of § 20-38.1 he shall be confined in jail not exceeding six months, or fined not exceeding $500, in the discretion of the jury."

Isn't statutory interpretation fun?

Community Mediated Sentencing

Over at Sentencing Law and Policy, Professor Berman has pointed to a practice in a few Alaska courts of "Circle Sentencing." It's an unfortunate name, but there's not much new to the concept. It's being sold as something that is somehow uniquely applicable to Native Alaskans. Nevertheless, anyone who has been going to CLE's or reading academic tracts over the last few years will recognize the concept. For identification purposes, I'm going to call it "community mediated sentencing."

Community mediated sentencing calls for the defendant to be put in a community group consisting of family, victims, community leaders, &cetera which explain to him the problems he has caused in the community.  The idea is to make the offender recognize his place in the community and the harm he has caused that community in order to cause him to alter his behavior.  It's a wonderful idea, but it has at least three serious flaws.

First, it assumes the willing and helpful participation of the community.  Second, it assumes that the offender will respond. Third, it is short term.

The willing and helpful participation of the community is difficult to obtain.  The local merchant who has been stolen from wants his strip of flesh; he has no interest in mollycoddling the thief.  The merchant from the national chain doesn't care about anything but getting restitution; he has more important things to do than spend the day talking to a shoplifter.  Community leaders can be anyone from the local preacher who means well, but has been ignored by the thief for the last 10 years as he preaches against the evils of drugs from the pulpit, to a local politician or activist.  The offender has not been paying attention to these people for the last ten years of his life; it's unlikely that's going to change now.  Then there's the offender's family.  If the offender comes from a hard working straight laced family they will most likely have told him the same things they are going to say in the mediation.  If he comes from a family wherein drugs and theft are just something everybody in the family does, and jail time is a part of life, then the family's participation is not likely to accomplish much.

Offenders seek programs like this because they perceive that the program will lessen their punishments.  Most offenders aren't particularly stupid; they will show a surface veneer of redemption. They will sit there and say the right things when expected to.  They will hang their heads and agree that they did wrong and swear that they understand the damage they have done to the community. At a superficial level they may actually believe what they are saying.  Nevertheless, once their community mediated sentencing is over, they will go back to the same places, hang out with the same people, and engage in the same behavior.

Finally, community mediated sentencing is a very short duration intervention. A few hours at most. Short term interventions do not work because they do not exert the necessary influence to change well rooted long term behaviors.  This is why we see all sorts of people who have been through shoplifting classes or two weeks of drug rehab right back in court. On the other hand, well run drug courts which require a year or more counseling and behavior modification (in my experience) do not have many of their graduates reappearing in court.  It's the continual behavioral retraining which actually does good; I've seen nothing effective short of a 6 month intensive program and even then doubt it is long enough.

These are the flaws in community mediated sentencing. To be honest, there will always be success stories in short term interventions such as these. There are always some people who are ready and just need that little shove to get them on the right track. However, when 5-10% of those participating are actually made better people that program is at least a 90% failure. Personally, I think the first two flaws can be worked around. It's the third which is extremely problematic. The funds aren't there to be able to put every low end offender into a program that lasts at least a year and strictly monitors the behavior of the offender.  As well, there is a very real concern that if there was a long term program and masses of low end offenders were funneled into it that it could not be as adapted to an individual as needed and would become just a way to spot check individuals and keep them from costing the taxpayer money by incarcerating them (you know, probation).

This is a wonderful idea that makes for great academic discussions and papers. It may also be something which can work in a very small community where shame can have a rectifying effect.  Nevertheless, in most situations it's not a viable solution.

We're 24! We're 24!

Yep, W&L Law is number 24 on the new US News ranking. That keeps W&L the highest ranked private law school in Virginia although there is a *sniff* public university somewhere in the Commonwealth which is ranked a little higher.

Oh No a Logo!

So, Scott's off haring after stupid marketing tricks again. This time it is about a kid barely out of the gates spending time worrying about and creating a logo for his two man firm. It's a never ending quest he has embarked upon to shepherd young lawyers away from the idea that glitz can make you successful rather than that boring actually practicing law stuff.

Most of the time I agree with Scott about these things (ie: you won't get clients by publishing a blog), but this time I have to disagree. I'm not disagreeing so much because he's wrong, but because I think I have to or I'd be hypocrite.

Hi. I'm Ken and I used to have a logo.

Actually, if I ever go back out into private practice I'll have one again. Let me explain.

I didn't create this logo for my law practice. It was a personal "coat of arms" I created way back when and have added to over the years. I think it may have started as a high school project. In the end it looked like this:

Don't ask me what all of it means. At least half of it is stuff that I thought looked cool when I was 16.

Anyway, one of the things I realized fairly early into my practice is that clients would go into court and tell the judge "Mr. Lammers said . . ." and sometimes they would go in with letters which backed up their claims, but which I did not ever remember typing. I talked to some of the senior defense attorneys about this and they told me "Sure, that sort of thing happens all the time. That's why we have pre-printed multi-color stationary. They can't fake that."

So, I went to the printer and walked right back out when the price he quoted me was about half the gross national product of Brazil. Faced with this, I went out and bought a cheap color printer. Then I figured out how to set up Word Perfect so that the logo would be on top and since nobody else had that pic and nobody would put that on their letters (as opposed to the ubiquitous scales) it made whether the letter actually came from me easy to discern.

So, you see, it was a security measure, NOT a sign of self importance or a marketing tool.

That's my story and I'm sticking to it.

Rape: Why it's not about control in the law

Over at The Volokh Conspiracy, Eugene Volokh has raised the almost heretical idea that rape is about sex instead of control.  As often occurs with posts over at the Conspiracy, the discussion in the comments is probably better than the post itself.  I always thought this argument was silly myself as rape, by definition, is gaining control of another in order to have sex with that person.  If one merely gains control it's abduction, not rape. If one adult merely has sex with another it may be hedonism, but we haven't outlawed that entirely yet.

And yet, as a lawyer, I don't care if rape is about sex or control. I care whether it fits under the statute. In Virginia Va. Code § 18.2-61 requires:

If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.

The difficulty in proving rape is that most of the time there are only two witnesses. This isn't much of a problem when the victim is badly beaten and at the hospital getting the rape kit done. In lots of other cases it is a terrible problem.

The inferred element above (except in the rape of a minor) is the lack of consent.  It is specifically the lack of consent, NOT whether the accused party reasonably believed that consent was given.  Intent is given extremely short shrift under Virginia's case law. In Commonwealth v. Minor, JAN04, VaSC No. 030401, the standard was set as:

Although proof of rape requires proof of intent, the required intent is established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape.

In other words, if you did it you meant to do it. That's not terribly helpful in the close calls. In the end, it almost always comes down whether consent was given.

The reason that courts and legislatures have shied away from allowing the accused's perception of consent as evidence is rooted in the desire to avoid the "she asked for it" argument. The basic principle that no one asks to be raped is axiomatic.  The mere fact that a woman dresses a certain way or is at a certain location does not mean she is asking to be raped. This seems to have taken a while to beat into the norms of society, but it has taken purchase. In fact, it can be argued that in some cases it has gone too far (Antioch Policy).

On the other side of this is the fact that consent does not need to be verbal. This causes a rather nasty dance in the courtroom where the prosecution tries to keep things out on the grounds that it is being introduced to show the accused perceived her consent (she asked for it) and the defense is trying to get things in on the grounds that they actually tend to demonstrate consent. What does it mean when the young lady shows up at the door wearing high heels, a leather micro-mini, and a skin tight tube top? Does your answer change if she shows up dressed like that in mid January and the weather outside is 15 degrees fahrenheit?  Thankfully, I'm not the judge who has to make those calls.

The consent issue can be particularly problematic in intimidation and incapacitation by alcohol cases. Consider a 300 pound offensive lineman and a 106 pound girl in his room. He makes a move on her, she says nothing to dissuade him, and they have sex. Was she intimidated by this guy without him even realizing it?  Or, did she think about how big a mistake it was the next morning and convince herself that she would have never had sex with him if he were not so intimidating? Or did he purposefully use his size as a way to scare her into being unable to refuse him?

Consider two college kids drinking at a Halloween party and both are drunk. They go off together and have sex. He says she helped him get her out of that skin tight catsuit and they had sex. She says she was so drunk she doesn't remember anything but coming to consciousness with him on top of her.

The problem with the first scenario is that even if you were there you might not be able to discern the reality of consent. In the second scenario you end up in a swearing contest between two individuals who both may believe their version is the truth.

Imagine overlaying an "intent to control" element on top of all this. The jury instruction might go something like this:

In order to find the defendant guilty of rape you must find that his primary goal was to demonstrate control of the victim through sexual behavior.

That is a nightmare. It would stop all sorts of rape charges dead in their tracks. It would make the date rape cases like those above - already the hardest to prosecute - almost impossible. "Sure, she was drunk and Bob took advantage of the situation, but he wasn't trying to demonstrate control; he was just trying to have opportune sex." It would even make the stranger sex cases difficult. "He had sex with her on the 15th, but it wasn't to demonstrate control; if it had been to demonstrate control it would have had to be part of some continuing pattern of behavior in which he asserted control prior to this event and the sex was just a demonstration of that control."

In fact if rape were a demonstration of control the only people who would consistently qualify would pimps and the abuser in an abusive relationship. Mind you, I think that this could be incorporated into the law for just those situations as an aggravating factor.

If you find that the defendant raped the victim and that this rape had the primary goal of demonstrating control over the victim through sexual behavior, you shall find the defendant guilty of aggravated rape.

However, I don't think that rape as a demonstration of control can, or should, be written into the general law of rape.

Dicta v. Dicta: The Meaningless Decision in Howes

I was just putting together my summaries of last month's cases and read Howes in depth for the first time. It's a Habeas case rising from State courts. Therefore, all that a federal court need do to reject it is to find some scrap of law that supports the assertion that there is enough flux in federal precedents that there is no extremely clear  constitutional rule the State court has violated.

In Howes, Alito does this by characterizing a clearly set out rule as dicta and then pointing to other dicta which uses to counter the rule. Having done this, his opinion ends. Right? No, of course it doesn't. He then goes on to bloviate on the rule as he wishes it to be (can't have short concise opinions). And here's my summary of his dicta:

Howes v. Fields, FEB12, USSC No. 10-680: 

(1) The fact that (a) no charges have been filed on the subject the officer is questioning the prisoner about and (b) the prisoner is not being held on a charge related to the subject of the questioning do not mean the prisoner is not entitled to Miranda warnings. (2) The fact that a prisoner is (a) imprisoned, (b) questioned in private, and (c) questioned about events in the outside world does not mean that he is in custody for Miranda purposes. (3) Detention alone is not enough to establish custody for Miranda. (4) The fact that a prisoner is imprisoned is not enough to require Miranda because (a) a prisoner will not be suffering from the shock of recent arrest, (b) a prisoner is not likely to be lured into speaking in hopes of prompt release, and (c) a prisoner knows the officers questioning him lack the power to reduce the duration of his incarceration. (5) Questioning a prisoner in private does not require Miranda warnings because he is merely being separated from prisoners, not friends and family. (6) Questioning a prisoner about something that happened outside the walls of the prison does not require Miranda warnings because it has just as much potential for criminal liability as questioning about events inside the walls. (7) When a prisoner is unrestrained and told he can leave and go back to his cell when he wishes there is no custody for Miranda purposes.

Kingdom: A Small Town Solicitor's Life

Netflix has decided that I love British television programs and keeps recommending them to me. Most of them I ignore, some of them I watch with bemusement, and some strike a chord.  Kingdom turned out to be a real gem. I rate it a 4 out of 5.

Kingdom is the story of Peter Kingdom, a solicitor in Norfolk. He is surrounded by a number of characters who are slightly offbeat. There's his protege, Lyle, who apparently didn't go to the best of law schools or spend his time worrying terribly about grades while there (it is implied that he would have never come out to Norfolk if he could have gotten a job in London), but who tries hard and has all the foibles, desires, and prejudices of youth. There's Gloria, the secretary who is the one who keeps everything running however chaotic things get. There's also the chronically depressed sister, Beatrice, who moves in and acts irresponsibly.

There's also a string of slightly goofy clients who come in and want Peter to handle all sorts of situations for them.  The most prominent of these is Sidney, the town eccentric who wants to fight the council on everything it wants to build in the town. My favorite episode is probably the one when the powers that be in the town get fed up with Sidney and start doing things to mess with him, such as putting a "No Parking" sign in the middle of his porch, 4" from the only doorway so that Sidney has to climb in and out his window.

There's also a slightly darker back story, which explores the death of Peter's brother and the debts he had accumulated with criminals prior to his dissappearance. I can't say this drew me to the show, but I think it serves as an anchor, keeping the show from spinning into a goofy comedy.

The great thing about this show is that it is just enjoyable. You are not being shoved along at breakneck speed. There's not a lot of people yelling at each other and threatening law suits. The tone can be serious, but it is not overly brooding. Best of all, the characters are not so eccentric and goofy as to be ridiculous. It's filled with understated humor and interesting situations, but no flash. Of course, this means it would never be made in the U.S.

Sadly, only three seasons with 6 episodes apiece were made in the U.K.  I recommend each and every one of them.

Can an Officer Enter a Residence to Arrest a Suspect?

I am constantly getting asked what the parameters are when a defendant is in a house and officers are seeking to arrest him. Then I always get dubious looks when I say, "Officers can do X, Y but not Z." So, I thought I'd look at it one more time and write it down here so I can tell people where to go to find information on entering a house.

The foundation of any discussion on entering a home is Payton v. New York, OCT79, USSC No. 78-5420.  In Payton the Federal Supreme Court struck down a New York statute that allowed officers to enter a residence without a warrant to make a felony arrest.

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton made it clear that officers couldn't enter a residence to seek a suspect, absent the usual exigent circumstances (defendant will escape, defendant will harm self or others, defendant will destroy evidence), unless they had a warrant in hand.  This case probably more sited for its converse aspect: if an officer has a warrant he may go into the residence to get the suspect.

As with any foundational case, this case led to a series of subsequent cases answering cases which refined the holding. These are the major questions that I know have been answered so far.

Can an officer with an arrest warrant enter a third party's house in order to arrest a suspect?

No. An arrest warrant does not allow an officer to enter the house of a 3d party in order to get the suspect..  Steagald v. U.S., APR81, USSC No. 79-6777.  Of course, there are exceptions to this if there are exigent circumstances or consent.  In all other circumstances the officers must get a search warrant to search a third party's residence.  However, while this definitely protects the resident, the entry into the 3d party's residence is not a violation of the suspect's rights and he probably wouldn't be able to use this as a defense.  See e.g. U.S. v. Willis, SEP10, USDC EDVa No. 3:10CR186-HEH.

What if an officer is trying to arrest a suspect and she runs back into her house? 

If a person is in public, including the open doorway of her house, and the officers engage in an attempt to arrest her, the officers are not required to stop at the door when the suspect retreats into the house.  U.S. v. Santana, JUN76, USSC No. 75-19.  It is considered a "hot pursuit."  Thus, during the Saturday night fun and games, when officers respond to a call about Bob being drunk again and Bob opens the door and spits at them, it's constitutional when they break the door down to get him.

Can officer just enter the suspect's residence as long as they have an arrest warrant?

No.  There is a test as to (a) whether this is the suspect's residence, and (b) whether the suspect is in the residence. However, there is a difference of opinion as to what level of proof the officers must have of these two factors.  The older standard is the one first laid out in U.S. v. Magluta, FEB95, 11Cir No. 93-5069.

We think it sufficient to hold that in order for law enforcement officials to enter a residence to execute an arrest warrant for a resident of the premises, the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that the location to be searched is the suspect's dwelling, and that the suspect is within the residence at the time of entry.

The reasonable belief standard seems to be the one that is adhered to in most jurisdictions, but in a minority of jurisdictions the standard is probable cause. The case which begins this line is U.S. v. Gorman, DEC02, 9Cir No. 02-50053.

We now conclude that the "reason to believe" standard of Payton and Underwood embodies the same standard of reasonableness inherent in probable cause.

 I cannot find any Virginia cases which decide this question. However, it seems to me that the Courts Appellate Virginian would almost certainly follow the majority and adopt the lesser reasonable belief standard.

Can an officer enter a suspect's residence if he has a misdemeanor arrest warrant for the suspect?

Yes. People just don't want to believe an officer can enter a residence to arrest someone on a misdemeanor warrant and often law enforcement agencies have policies against doing so. Additionally, there is an argument that since Payton struck down a statute allowing entry without a warrant to make a felony arrest that the converse aspect of that decision is that officers can enter with a felony arrest warrant - not a misdemeanor arrest warrant. However, this interpretation of Payton has been roundly rejected.

The case which sets forth the interpretation of Payton allowing entry with a misdemeanor warrant is U.S. v. Spencer, JUL82, 2Cir No. 81-1493.  The decision points out that no matter the language of the rejected statute, the court in Payton speaks of arrest warrants generally, not distinguishing felony warrants and misdemeanor warrants. It concludes that the general language includes all arrest warrants (felony, misdemeanor, and bench) and therefore an officer with any arrest warrant can enter a residence. Every opinion I have found addressing this issue adopts the Spencer reasoning and allows officers to enter residences when they have a misdemeanor warrant in hand. In fact, Virginia takes it a step further. In Archer v. Commonwealth, NOV97, VaApp No. 1726-96-1, the Virginia Court of Appeals approves entry when the officer knows of the existence of an arrest warrant, even if he does not personally have it.

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Objection Cheat Sheet

Sometimes you just run into something cool that you have to share. Mark walked past the prosecutor's desk and saw a cheat sheet for young prosecutors. I looked at it and thought maybe we should tape this to the desks we have in various courtrooms. That way we could all look down and scan quickly for the proper objection or maybe throw dice to choose.

Of course, we'd have to change some things. Since we don't yet have rules of evidence there is no "403" in Virginia, we'd have to replace it with "Overly Prejudicial." And, I'm pretty sure "Side Bar" isn't an objection (at least it's not in Virginia); so, I'd probably take it off the chart. I've only once heard a narrative objection, so I wouldn't put it in such a prominent place. Finally, I can't say I'm certain what "Improper Voir Dire: Expert Opinion" means exactly. Everything that I can think of falls under "Improper Commitment" (asking Jury to prejudge evidence), "Going Into the Facts of the Case", and "Argument."

Of course, now that the General Assembly has made certain that it has the final say on evidentiary rules, it looks like we are going to have brand new Rules of Evidence in Virginia (say goodbye to common law evidence and our friend Friend). So it might not just be brand new lawyers who need a sheet to tell them what objections are appropriate. Soon, everybody in Virginia will need an evidentiary cheat sheet.

Castle Doctrine

The General Assembly has tried to make a statutory "castle doctrine" part of Virginian law for several years now. I discussed a previous version of this back in 2010. The difference between then and now is that it appears the current version will be enacted.

The House of Delegates Bill (HB48) mirrors the Senate version of the bill (SB4):

§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense. 

Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when (i) the other person has unlawfully entered the dwelling and has committed an overt act toward the occupant or another person in the dwelling and (ii) the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.

It fails at some of the same things which I thought were shortcomings in the version I discussed previously.

(1)  "Injury" is a poor choice of words. It already has the specific meaning under Virginia law of serious internal bodily damage. This is as compared to "wound", which means bodily damage which breaks the skin, and "harm", which is less well defined but seems to mean causing pain and non-serious bodily damage. The General Assembly could do better to state "wounding or injury." It could also write a specific definition into the statute.  As it stands, bodily injury cannot mean only what the term of art "injury" has meant under current interpretation because it would be ridiculous to restrict this statute to bodily injuries that did not break the skin. This will mean that the meaning will be undefined and we get to spend time arguing over whether a punch in the face justifies deadly force under this statute.

(2)  I wish it stated "feloniously entered" instead of "unlawfully entered." I have visions of every yahoo who has his fight with his neighbor spill into his house or who gets into a fight with his cousin in the kitchen claiming he has the right to use deadly force because "He was trespassing in my house."

(3)  I wish there were presumptions in this that stated that entry into a residence at night (burglary), while the residents are asleep does not require an overt act.

All-in-all, I don't expect this statute to change much of anything. Virginia isn't the most forgiving Commonwealth when it comes to somebody who breaks into someone else's house. I can't remember any legitimate cases wherein I've seen someone prosecuted - or even sued - for taking care of an intruder in his house.

Lilyhammer: An American Mobster in Norway

5 Second Review:  When an American mobster is hidden in Norway everything will go well, right?

30 Second Review:  An American mobster turns on his fellows (well, they tried to kill him first) and his only condition is that after he testifies he will be resettled in Lillehammer, Norway. Will he take over the whole country or just Lillehammer?

In Depth:  When the new boss tries to kill him, a high ranking mobster turns government witness on condition that he be resettled in Lillehammer, Norway.  He shows up in Norway where the government has given him a tiny row house, an electric car, and an invalid driver's license. He runs face first into an amazing level of bureaucracy and small town police. Being a mobster, he doesn't just sit around and take it; he starts to bend the entire system to his will.

There's a good bit of humor here which starts from goofiness surrounding the interaction between an Italian-American mobster and Norwegian society. However, there's also a dark humor which surfaces whenever someone gets in the way and when the Mob figures out where their turncoat is and sends a couple guys to take care of the situation.

Cons: This is not a show you can listen too in the background while you are doing something else. Unless you speak both Norwegian and English you have to read the captions at the bottom. I've watched all but one of the episodes and Norwegian may have replaced Arabic as my second best language. Also, this is only on Netflix, but everybody has Netflix by now so it shouldn't be too difficult to find.

Porn doesn't "promote the Progress of Science and useful Arts"

Interesting. After years of copyright fighting over people copying videos and songs on the internet someone actually went back to the beginning and looked at what the U.S. Constitution has to say.

The Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The question then becomes, what is a "useful Art?" I cannot claim expertise in this area of the law, but it does seem to me that useful arts would be things such as mechanics, blacksmithing, sewing, etc.  This would exclude things such as acting, singing, dancing which are not meant to provide a product for further use, but to provide entertainment in the moment. It's an intriguing argument which seems to have teeth. Of course, there are a lot of arguments which seem to have teeth at first glance, yet are contrary to long established interpretation by the courts.

Of course, the woman in this case is accused of violating copyright regarding porn, which technically could be related to a useful art (sex) meant to provide a product (child). I'd love to see how that argument played out in court.

Change the Court of Appeals - Don't Delete It

Senator Creigh Deeds introduced a bill calling for the elimination of the Virginia Court of Appeals. Per the VLW blog Senator Deeds "said few of the Court of Appeals judges had experience in criminal, domestic or workers compensation practice before going on the bench. 'We’ve used the court as a place to reward folks.'" There's nothing terribly shocking about that. The old chestnut in Virginia runs something like: "How do you become a judge in Virginia? You grow up with a friend who becomes a Delegate." For those of you from outside the Commonwealth, the kernel of truth in that comes from the fact that in Virginia the General Assembly decides who will be judges in Virginia. Somehow, I just don't see the Court of Appeals going away because of cronyism. If it did, how would cronies be rewarded?

However, the Court of Appeals could use some direction from the General Assembly in order to make it a better institution.

1) Require all Appellate Courts Virginian to have a strong presumption for the addressing the actual issue presented instead of dismissing cases because of errors in the filing. The appellate courts in Virginia have long had the reputation for denying appeals on grounds other than substantive. This is unjust because it denies the appellant his day in court because of error by the appellant's attorney. I have previously suggested a statute meant to deal with this and answered questions concerning my position.

2) Mandate that all criminal conviction appeals must be accepted for a three judge decision by the Court of Appeals. However, establish a presumption against oral argument.

There's really no reason for oral arguments except as an ego boost for attorneys and judges. If all but extraordinary cases were proceeded upon via court filings it would be more efficient.

There will be those who argue that mandating that all criminal convictions be accepted will bog down the Court. It will probably add some work to the Court. However, all the paperwork and fuss that now goes on with petitions for appeals will go away and this combined with doing away with almost all oral argument would make things close to even.

3) Set a specific format for appellate opinions. This should be something like

A. Error accepted for argument. List it exactly as accepted without comment.

B. Holding. No more than one paragraph.

C. Disposition. No more than one paragraph.

D. Facts. No more than 1 page.

E. Legal Rationale. No more than 4 pages. Most well written decisions follow a format similar to this already. Yet, there are scads of opinions where the judge or justice just plunges into the facts and analysis and doesn't tell you what the actual holding is until 17 pages later.

A set format would make it easy to quickly understand a case's holding and those of us in the middle of a trial need to quickly understand a case's holding.

The page limitation is something I wish that legislatures everywhere would impose on appellate courts. Decisions get filled with tons of irrelevant boilerplate and footnotes and circular reasoning going round and round and round. If the appellate courts were forced into brevity, and God is merciful, a lot of that would be shorn away. Look back at opinions from 100 years back or further. They were able to use two or three pages to be less obtuse and confusing than our current appellate courts are in fifteen. I am confident our current judges are capable of writing concise, well written opinions.

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These three changes could be written into law by the General Assembly in order to make the Virginia Court of Appeals a much better court. The first two would make it more just. The third would make it easier to actually use its opinions.

Of course, there would be myriad objections to these changes, but they would all basically boil down to (a) "Wah! You're going to make us work harder!" and (b) "Change how we do things?!?! OMG! It's the end of the world!!!" I know Virginia is resistant to any change, but change for the better is a good thing.

Now on to some less important things that could be changed.

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4) Assign areas of the Commonwealth from which each Court of Appeals judge must be appointed. Whenever a position opens up on the Court of Appeals candidates pop up from all over the Commonwealth. The obvious danger here is that the large urban areas can soak up all the slots and leave the more remote areas unrepresented on the Court of Appeals.

5) Mandate that Court of Appeals judges must have spent at least three years as a defense attorney and three years as a prosecutor. Yes, I know this is a pipe dream, but it would be really nice if appellate judges charged with deciding most criminal law issues understood both sides. I don't care how much time someone's spent as a trial judge, prosecutor, or defense attorney, without having worked on both sides he does not understand the system in its entirety. Ideally, the Court of Appeals judges should have previously been a defense attorney, a prosecutor, and a trial judge, but I think that the marginalization of the trial judge in the era of guidelines, plea agreements, and mandatory sentences probably mean that serving as a trial judge is not as important a prerequisite as it should have been in the past.

6) Require all decisions, published or unpublished (including denials of petitions) to have a judge's name on them; do not allow any court except the Supreme Court of Virginia to use "per curiam." Admittedly, this is a pet peeve of mine. Back when I was doing defense work, the use of "per curiam" by the Court of Appeals was adopted on denials of petitions for appeals (previously they had been each attributed to a particular judge). I wouldn't have wanted my name on the vast majority of denials I got either. 80% of the denials were a page or two of boilerplate with a paragraph or two that were tailored for the petition I wrote; some displayed such a disconnect that I wondered if the argument I made had been read or understood. It seemed obvious these were being written by the clerks and the "per curiam" label wasn't being used as intended (the answer to this issue is so obvious that all the judges agree it is X), but as a way for individual judges to avoid having to put their names on these denials. Of course, of all the issues I write about today, this is the one of least importance. It just annoyed me.

Puppies

There's no way I would have thought my German Shepherd, Holly, could have had so many puppies. I think she's a little overwhelmed herself.