November Novel: CrimLaw Novel: Chapter 2

Bartlett County

[Chapter 1]


Chapter 2

Yusif Habib walked toward his boss' room at Mount View Hospital. It took the Sheriff's Department over three hours to find him and tell him about the gunfight and explosion. The 911 office in the Sheriff's Department had his cell number, but the explosion caused the ramshackle old inn next to the courthouse which housed the Sheriff's Department and the offices of the clerks of the various courts to catch fire. It burned to the ground long before the volunteer fire department got itself together. Thankfully, the building had been mostly empty and everyone got out, but the 911 office went up in flames with it. Of course, getting in contact with Yusif was not a high priority either.

Paula finally called him about nine-thirty, ten minutes after Rare Dare, the movie his date had chosen, started. He was at a theater in Bristol and dropped his date off at her place before he drove back. He did it in less than ninety minutes and it was something of a miracle that he did not wreck his car driving the curved roads of Southwest Virginia at night at the speeds to which he pushed his little Hyundai. Mount View Hospital was immediately next to the exit from 23E on the first Mount View exit so Yusif pulled into the hospital immediately without going into town. He could see lights flashing further up the road, but he was going to check on Brad first. He knew that Mount View Hospital was really just a glorified clinic and there were only two types of patients who stayed the night - those who had no real problems and those for whom nothing could be done. Anyone else was sent on to one of the big hospitals in Tennessee. He was going to make sure into which category Brad fell.

As he approached the door he heard Brad's voice raised in irritation. "Dammit, Maggs, give my phone back!"

A female voice replied tartly. "Don't you Maggs me, Nickel. All you were doing was annoying any deputy dumb enough to answer his cell. You are supposed to be resting. I'll let you know if anybody calls about anything important."

Well, that was a good sign. If Brad's wife was picking on him then his injuries could not be too serious. The two of them kvetched at each other constantly, usually because Maggie was pushing Brad to do something he ought to and he was resisting. When she really wanted to get his goat she started calling him "Nickel." Of course, everyone in Bartlette County called Brad "Nickel", but Maggie was the only one who did it to his face - usually with a fierce grin on hers while she did so. Brad hated the nickname which came from his years on the high school football team. He played football because his father made him and Coach Huggins had screamed at him over and over again "Dollerby you ain't worth a plugged nickel!" By his junior year everyone at Yared High called him Nickel. In his senior year, the local newspaper was running weekly sports stories about "Nickel" Dollerby which culminated in a front page headline when the Yared High Black Cats won the district championship over the Pound Wildcats and Brad ran for three touchdowns: "Nickel Worth More Than Pound!" Brad had been mortified and he still hated the nickname.

Walking through the door, Yusif saw Brad sitting up in bed with a bandage covering his right ear and Maggie sitting in the chair next to it. Brad saw him first. "Yusif, would you tell this insufferable woman that I need my phone?"  

"Umm, no thanks boss. I learned a long time ago not to get in between a man and his wife. Nothing good can come from it."

Brad waved his hand and Maggie turned to Yusif. She was thin as a rail and had flaming orange hair. She pointed at her husband. "He gets no phone before eight tomorrow morning and I don't want to hear that you gave him your phone either. No damage to the courthouse and this idiot still manages to get himself hurt and when I come tearing up the four lane to get here I found out that all that really happened was that he got his bell rung and had to have a scratch in his ear stitched up." She turned back to Brad. "Now that Lurch is here, I am going to go get some coffee. He can keep you company for an hour or so while I call everyone and make sure they know you are safe." As she started to walk out of the room she stopped and looked up at him. "Al-telephone mamnooa. Tafemni?"

Yusif stared at her blankly for a second. "Uh, no telephone?" She nodded sharply and walked out of the room. Yusif walked over to the bed. "Y'all have known me for over ten years, since our first year of law school, and she still doesn't believe I don't speak Arabic."

Brad adjusted himself in the bed, pushing a button to make it incline further. "Hell, Yusif, the reason she made us track you down at that mixer was that she saw your name on the list of new students and wanted to practice our language skills. I'm pretty sure she's never forgiven someone named Yusif Habib for not speaking Arabic."

Yusif chuckled. "I grew up in Winchester, Kentucky. The only person who spoke Arabic in my house was my Giddey and he died when I was eleven. Now, if you ever need a translater of Kentuckyese, I'm your man."

They both smiled. It was a familiar bit of patter - a joke the three of them had been sharing since they met at the mixer for first year law students at the University of Kentucky. It was also a favored way of dissembling when they did not want address a difficult topic. As the conversation lulled, Yusif took a deep breath.

"What the heck happened, Brad?"

"Well, you have to understand that I didn't see any of it. I was in my office, prepping for the next day of trial, and there was gunfire and a massive BOOM." Brad waved his hands in the air emphasizing the point. "Maggie's right. There's no damage to the courthouse, but that didn't keep me from having a bookshelf fall down on me. The next thing I remember is waking up in this bed a couple hours later with a bandage on my head where they sewed a rip in my ear back together." Brad rolled his eyes. "First thing they did after I woke up was try to give me an oxy. I don't remember much, but I understand I cussed the nurse out and told her where she could shove her oxys, tabs, and percs. Damn doctors hand those pills out like they're candy. Then I passed out again and when I woke up Maggie was here. She let me make a couple calls and then, when I wasn't looking, she grabbed the phone. You showed up while we were discussing that."

"Have you been into town yet?" After Yusif shook his head, he went on. "Okay. As best I can tell sitting here, the deputies were walking the Pahls over to the holding cell in the Sheriff's Department. Lasley, Tolliver, and that priest from up north were walking with them. They were in the alley between the buildings when someone opened fire on them. The deputies returned fire and everybody ran back toward the courthouse door. The propane tank was at the end of the alley and as the deputies rushed everyone back to the courthouse it was between the them and their attackers. Don't know who shot it, but the tank let out a big cloud of propane gas which filled the alley and then blew. It was basically a fuel air explosion. The courthouse is made of granite pulled out of the Yared quarry. Other then blowing out windows and causing furniture to fall over, the explosion didn't affect the courthouse. The old inn didn't make it. The part facing the courthouse collapsed and it caught fire. They don't think anyone was in the building but the two women working dispatch in the 911 center and it was on the other side; they got out."  

Brad paused and when he did not resume Yusif prompted him. "Who were the attackers? Was anyone hurt?"

"No idea who the shooters were. Everybody in the alley was medflighted to Tennessee. They're all in bad shape. Burns, bullet wounds, and concussive injuries. The door to the courthouse closed and locked behind them and the alley's door to the Sheriff's Department was twenty feet down the alley, in the direction of the shooters. They got back to the courthouse door, but they didn't get it unlocked in time."

"The only reason we know as much as we do is that Bo was trying to get the door unlocked and he got hit by four bullets right before the explosion. Three hit the back of his vest, but one hit him solid in the right arm. He got knocked down and fell in the middle of those trash cans they keep back there. Apparently, they absorbed most of the heat and explosion. He got bruises and a concussion, but was able to tell what happened before they sent him off to one of the Tennessee hospitals for surgery."

Brad motioned Yusif closer and lowered his voice. "You need to get over there. The last I heard, Major Harvey had broken into the empty store across from the courthouse and set it up as a headquarters. Get over there. Try to keep them from doing anything we, and they, will regret later. Don't be stupid about it though. I've seen what's going to happen here in Iraq. Before tonight the deputies knew they were the toughest, meanest, and most untouchable people in Bartlette County. Tonight, three of their people were are in a hospital and their headquarters is a pile of smoking rubble. These men are going to be scared and angry. That makes them dangerous. Try to keep a handle on things. The last thing we need is for the Sheriff's Department to go on a witch hunt, breaking down doors and rousting people because they've given the deputies trouble before and therefore they might be involved in this. We want to be able to prosecute the bastards who did this and if the deputies run wild they'll fuck it up."

Yusif nodded. He was unsure what good it would do to send him over. His working relationship with the deputies was good, but if they were going to go as wild as Brad feared there was no way they would listen to him. They would not listen to an outsider who moved into the county three years before to take the assistant Commonwealth Attorney position the way they would Brad, whose family had lived around the town of Yared for longer than anyone could remember. Still, he had to try.

As he turned to walk out, Brad must have seen his concern because he held up his hand in a halting motion. "Just hold the line until tomorrow morning. I'll be out of here as soon as I can and I'm coming straight over, no matter what Maggie says. Now, go do some good." As Brad smiled grimly, Yusif completed his turn and left the hospital room.

November Novel Month: CrimLaw Novel: Chapter 1

November is supposed to be national novel month. There's even a website, so you know it must be important.  I am going to try my hand at this.  As I finish chapters I will post them here.  Enjoy Chapter 1:

Brad Dollerby looked up at the jurors sitting in front of him. It had taken two and one half days to select the people who would sit on it, which was an unusually long time in Virginia.  In Virginia most jury trials were finished in the first day and jury selection was an hour of that day.  Selecting this jury had been a nightmare because the defendants were the sons of Martin Pahl, one of the five or six richest guys in Bartlette County.  He owned at least twenty eZee Stops, the BartMart (the biggest store this side of the Wal*Mart in Norton), and he was probably the biggest local donor to the Republican Party.  Everyone did business with Martin or owed him a favor.

The defense attorney tried to get the trial moved to another county because the local paper, the Weekly Mountain Democrat, published six front page stories about the Pahl brothers.  Brad also urged the judge to move the case because he was worried about Martin Pahl's influence in Bartlette.  Judge Isom would not have any of it.  He made it very clear that there was no way the trial would be moved to another county unless they absolutely could not seat a jury in Bartlette.  Then he ordered the circuit court clerk to assign two hundred people to jury duty for the term of court from January through March and to summon all two hundred of them to jury selection.  One hundred and forty two actually showed and it had been a close question as to whether the jury would be seated.  By the time all the jurors who had some sort of bias from the paper or who knew the Pahl family were removed and both sides did their peremptory strikes, one hundred and seventeen jurors had been dismissed.  However, there were now nine women and five men sitting in the jury box. If nobody got sick or disappeared, two of the jurors were alternates, but no one would know which two until they were randomly selected at the end of the trial. He glanced one last time at his notes and began.

"'Ah Hell, they ain't nothing but money hungry pill whores.'  That's what Justin Pahl said when the deputies arrested him and his brother Kyle chimed in, 'Yeah, them bitches didn't get nothin' they didn't want.'"

"On the twentieth of June last year, the Pahl brothers went to Finch's Pub and Grill in Saint Minas.  They picked up four women - Kayla Mullins, Maggie Forwith, Kate Young, and Marla Tate.  They all went back to the Pahl brothers' house and spent the night drinking, snorting pills, playing around in the hot tub, and having sex.  We're not prosecuting them for any of that today."

"The reason we're here is what started the next day and went through the following week.  When the women woke up the next day they were in a couple bedrooms on the third floor with a bathroom shared between them.  The doors to the bedrooms were locked from the outside with deadbolt locks that could only be opened by key.  The only windows were a couple skylights which were through the roof and out of reach. For the next eleven days Kayla, Maggie, Kate, and Marla were held against their will.  They were only let out of the bedroom one or two at a time and only to have sex.  When the they refused to come out, those two," he pointed at the defendants, "refused to give them any food.  When a day of that didn't work, they cut off the water, electricity, and air conditioning to the third floor.  The temperature outside was in the eighties; inside the temperature got much hotter.  By mid-afternoon on the third day the women gave in."

"For the remainder of the eleven days the two of them would choose whichever woman they wanted and order her to come out of the rooms.  They'd do whatever they wanted to that woman and then lock her back up.  Finally, on the eleventh day, a day before their father got home from his vacation in Gatlinburg, they let the women out of the rooms, gave them a bottle of oxycodone pills and five thousand dollars. Then they dumped them all back in front of Finch's. Kayla and Maggie wanted to forget it all, but Kate and Marla refused to let them get away with it.  They went to the Sheriff's Office in Mount View the next day and reported it all."

"Justin and Kyle Pahl are charged with abducting these women and various charges of rape, sodomy and object sexual penetration.  At the end of this trial you'll see what those men did and we trust you'll hold them responsible for their actions."

As Brad returned to his seat, Grant Lasley, the defense attorney for Kyle Pahl stood up and started his opening statement with the traditional formula.

"May it please the Court, Learned Counsel for the Prosecution, Ladies and Gentlemen of the jury, this is the story of four prostitutes who got upset because they didn't get the money they expected . . ."

Brad half listened to Lasley's opening.  He knew what Lasley was going to do in this case.  He was going to do what he did every time - blame the victims.  The evidence was overwhelming about what the Pahl brothers had done, so the women must have actually wanted it done. Furthermore, the victims were terrible persons who deserved what happened to them, and the defendant was the actual victim because these women were persecuting him. There were rape shield laws in Virginia which were supposed to stop that sort of thing and Brad argued before the trial that these arguments should be barred, but Judge Isom overruled him. Now Lasley would spend the next three days of trial slandering these women.

Of course, technically Grant Lasley represented only Justin Pahl.  Squire Tolliver represented Kyle.  However, Squire was not going to be the attack dog, slandering the woman and trying to get improper evidence admitted.  Instead, he would do the "not in anger, but in sorrow" part of the show.  Indeed, as soon as Lasley finished Squire stood up to start his part of the double team.

He looked for all the world like a country squire from a BBC show about 1940's England standing there in his tweed suit and sorrowful face.  "Ladies and Gentleman, I am Keith Tolliver, but everyone's called me 'Squire' for the last twenty years. Not sure why." He smiled at the jurors as though sharing an inside joke. "We're not here because we hate these girls. However, because we believe that our clients are falsely accused, we are going to have to tell you some bad things . . ."

As Squire droned on, Brad thought about the evidence he would present today. He would probably only have time to call Deputy Mullins and if he had to he would call Investigator Powell. He would put off calling any of the victims until tomorrow or Friday. He looked at the time on his computer. Four-seventeen. If opening statements went much longer Judge Isom might not let him call any witnesses at all today and the last impression the jurors would have would be the defense attorneys' openings. However, Squire was already at least five minutes beyond the fifteen minutes Judge Isom allowed for an opening statement. As if on queue, Squire wrapped up and walked back to his seat.

Judge Isom looked at Brad.  "Commonwealth, call your first witness."

Brad stood. "Your Honor, Commonwealth calls Deputy Sergeant Tom Mullins."

.........

It was six-forty seven when Brad got back to his office.  The questioning and cross examination of Deputy Mullins took about an hour and then the judge let the jury go.  As soon as the jurors left the courtroom, Lasley made a motion for a mistrial on the grounds that Brad had irreparably prejudiced the jurors because he repeatedly referred to the four women as "victims" rather than "complaining witnesses." They argued for another forty-five minutes about that before the judge shut it down, ruling that the defense was not entitled to choose the words the prosecution could use and was not entitled to sanitize the trial by removing words a normal person would use. Then the judge adjourned for the day.  The deputies had not yet started putting the shackles on the Pahl brothers, so they could be transported back to jail, when Brad grabbed his files and left the courtroom; in fact, the brothers were saying a prayer with their uncle when he left.  The uncle was a Catholic priest who had driven down from New Jersey and sat in the front row, behind the brothers, for every minute of jury selection and the trial so far.  Brad disliked that bit of staging, but he could not think of a viable way to stop it.

The lights were still on in the office when he got there.  His office was up the stairs in the old balcony of the courtroom, which had been converted into two rooms.  The first room had two desks in it. One was for Paula, who filled the role of secretary, receptionist, and paralegal.  The other was for Jeanna, the victim-witness advocate.  If you walked between the desks through the door behind them you were in his office. It was not an opulent office. There was barely enough room for two bookshelves, his desk, and a couple chairs in front of it for visitors.  In fact, his deputy's office was three times the size of Brad's, but it was also in the bell tower even further up the stairs and was basically an converted attic.

Brad walked through the empty office and sat at his desk. There were at least twenty phone messages stacked neatly on his computer keyboard.  Paula did not trust that he would find them anywhere else amidst the piles of papers on his desk.  He picked them up and looked through them.  There were three that required an immediate phone call; one from Delegate Pierce, one from the Governor's office, and one from the Bristol newspaper. There were about six from salesmen trying to get him to buy law books or computer programs - those could be ignored.  The rest were from various people who did not have emergencies and probably would not appreciate him calling them in the evening anyway; he would leave a message for his deputy to call them tomorrow. He picked up the phone and dialed the Delegate's number.  It went right to voice mail and the message had just beeped . . . 

Pop. Pop. Pop. . . . Pop Pop Pop Pop

He had not heard that noise since Iraq.  He dropped the phone and reached for his pistol. Then he realized he did not have it; during a jury trial, Judge Isom forbade anyone to be armed in his courtroom other than the bailiff.  His pistol was locked in the desk. He grabbed for his keys and fumbled to get the right one.

A massive blast hit him from the left side. He was thrown to the right and he tumbled to the floor still in his chair. He saw the wooden bookshelves which were next to the the wall bounce against it and rebound, falling over top of him.  Then everything suddenly went black.

In This Era of Unemployment, Can Criminals Provide a New Job Source?

According to a Cali Court they could (if police could not pull over a car if they saw a passenger who was a wanted felon):

"Appellant contends that since Officer Hopkins had no suspicion of criminal activity or wrongdoing by him, the officer may not stop his vehicle. He argues [that] an investigatory stop [is allowed] only if there is a reasonable suspicion that the person driving was involved in a completed felony. Therefore, he argues, he could not be stopped. If we were to adopt such an untenable rule, then legions of criminals throughout the land could hire drivers, who are upstanding citizens with no past criminal involvement, to chauffeur them around our streets and highways in open, notorious view. As smug passengers they could wave to the police who could only watch in frustration as they passed by. A momentary stop of an automobile by police to investigate a passenger reasonably believed to be involved in a past crime is proper. It creates a minimal inconvenience to the driver of that automobile, when balanced against the government's interest in apprehending criminals." In re William J., 171 Cal. App.3d 72 (1985).

I wonder if the pay scale increases depending on how serious the crime the fugitive is accused of?

Surrebuttal

While you are in law school you are taught that the way that evidence is presented in court is simple: Evidence then Counter then Rebuttal. This occurs both in macro and micro formats. In the macro format it is prosecutor's case in chief then defense's case in chief then prosecutor's rebuttal. In the micro it occurs during questioning and argument. For example, in argument the moving party argues its motion, the other side offers counter argument and the moving party gets to argue in rebuttal.  However, there is this thing which isn't talked much about in law school (if at all), surrebuttal.

Surrebuttal is a fourth step in the courtroom dance.  It allows the party who has just seen his evidence or argument rebutted to present more evidence.

Surrebuttal is something that I'd not thought much when I first started practicing law. The courts wherein I practiced looked upon surrebuttal with strong disfavor.  An attorney had to ask for it and (I am fairly certain) had to have pictures of the judge in a compromising situation in order to get surrebuttal.  I only actually saw it asked for a few times and can't remember ever seeing a judge allow it.

Then I moved to a different area of the Commonwealth and learned how differently courtroom procedure can be even in the same State.  Routinely, the pattern in this area of Virginia the judges allow back and forth until the attorneys exhaust themselves. In other words questioning of a witness goes like this: prosecutor questions, defense attorney cross examines, prosecutor asks rebuttal questions, defense attorney asks surrebuttal questions, prosecution asks more questions, defense attorney asks more questions, prosecutor asks even more questions, defense attorney asks even more questions, and prosecutor asks even more questions, &cetera.  Usually the number of questions winnows down until one side or the other runs out of things to ask.  The attorneys don't even have to ask permission to keep questioning; they just stand up and start questioning.  In fact, I've seen judges prompt attorneys until one side finally admits he can't think of anything else to ask.

Now, surrebuttal is at the trial judge's discretion and a judge never allowing it isn't correct, but always allowing it isn't either.  The answer is somewhere in the middle.  It's difficult to suss it out because it is not addressed anywhere in either Virginia's statutes or Virginia Supreme Court's Rules.  There are a lot of gaps like this in Virginia's procedure; it's a rather large flaw which means the courts have to fill the gaps.  So, we have to look to case law and the pickings are slim.

The cases which address surrebuttal address the same situation: After the Commonwealth has presented its rebuttal when can the defense present surrebuttal? The rule from the two whole cases which address this procedure is:

If the prosecution introduces evidence for the first time during its rebuttal then the defense can introduce evidence that contradicts or alters the import of that evidence as long as the defense's evidence is not cumulative.  Quintana v. Commonwealth, 224 Va. 127 (1982).  However, if the defendant's evidence has touched upon the topic the defendant is not entitled to surrebuttal.  Hardyman v. Commonwealth, 153 Va. 954 (1930).

So, that's the extent of Virginia's law on this procedure. The key elements are that the prosecution must have introduced new evidence and the defense isn't entitled to surrebuttal if it brought the topic up first.  While there will always be arguments as to whether the prosecution introduced new evidence or if the "new" evidence introduced by the prosecution is in rebuttal to evidence first introduced by the defense, this rule would seem to limit rebuttal to a specific circumstance and thus make it less common.

CrimLaw Roundup

1)  Virginia judges want nicer attorneys.  This story pops up once or twice a year and yet we attorneys remain obstreperous and contrary. Probably has something to do with the fact we have trials rather than inquisitions.

2)  If you fly from Japan to L.A. with a grenade, leg irons, and body bags, the police are going to want to talk to you.

3)  The President of Egypt tries to fire his Attorney General and gets told "Over my dead body." Literally.

4)  "Kid was in the right place, wrong side of the fence."  Warden's son caught burglarizing houses near the prison.

5)  Phones getting too secure to be hacked - by the government.

6)  Is having "Asperger's syndrome and [being] on the autism spectrum" enough to keep you from being extradited to the US for breaking into the Pentagon's computers?

7)  Australia starts sex offender website.

8)  Police enforcement of the anti-smoking ban in the strip clubs.

9)  In Japan, apparently if you want to film up a woman's skirt you just need to make sure you are on a plane so they can't figure out the proper jurisdiction.

Crime Costs How Much?

$3,216,000,000,000 per year.

That's the conclusion of Professor David Anderson at my alma mater, Centre.

I downloaded the paper and was going to offer some sort of blow-by-blow critique, but stopped after getting a quarter way through when I realized that I would end up quibbling over something in almost every paragraph. In the end, it's a guesstimate based on a whole bunch of other studies. Personally, I strongly suspect it is high, but I don't have any way of backing that up with solid evidence.

Professor Anderson is trying to provide some sort of metric to use in describing the impact of crime on society other than actual arrests / incarcerations. It's a laudable goal. Assume that 20 years ago 500 people acted illegally, money being laid out in defense against crime was $100, and losses were $250 and in the modern era 400 people act illegally, money being laid out in defense against crime is $250, and the losses are $300. You have a net gain in the number of people acting legally, but a net loss in societal costs. This would be useful information to have in planning a rational behavior pattern in regards to potential criminal activity.

And that's about as deep as I get into economic theory. Admittedly, while this article is fairly plainly written, there were times I could not help but be drawn into the economic brambles. For instance there is an assumption that every second spent unlocking something is a loss of productivity - even if the person would not be producing anything at the time. "This calculation does not rely on the assumption that the time saved in the absence of crime would be spent working. If time freed from crime prevention would be devoted to leisure rather than work activity, this indicates that the leisure time is valued more highly than the monetary rewards from additional work." Okay, fine. That two seconds I spend unlocking my car could be spent staring back at the cows who walk up behind my house. Putatively, a infinitesimal period of cow staring may provide me with more enjoyment than unlocking the car door. Let's just assume I really love cows and it does. Okay, then doesn't that mean that every second of every day of an incarcerated individual's life should be counted as a loss while he's incarcerated, rather than an arcane formula that accounts for wage availability, employment rates, and prison productivity? If things are measured one way in one place and a different way elsewhere there seems to be an inherent flaw in the analysis. I state this not because I think incarcerated time should count as more loss of productivity. Personal experience makes me very skeptical that every person in prison is a loss of $30,769 yearly; the vast majority of people I've seen in court are living off government provided money or their family (in addition to their illegal activity's income). Rather, I think it is error to count time spent unlocking things as lost productivity if it does not interrupt a productive activity. I'm sure there's some wonderful economic theory as to why I'm wrong about this, but my simple little mind just got irked by this.

I'm also somewhat leery about estimates of losses due to "transfers" by law enforcement, businesses, and retailers. There is a strong incentive for both of these to upsell the amount of loss. That's not to say that they will lie, but given the ability to choose between valuations the incentive is to choose the highest. If there is a choice between wholesale / break even price ($3), store "on sale" price ($8), and regular ticket price ($11) they will most likely choose the regular ticket price. There are several reasons for this. Both government agents and store loss prevention employees can better justify their existence, and perhaps get a higher budget, if they choose a legitimate valuation which is higher than other equally legitimate valuations. There could be higher tax write-offs by claiming the higher value. As well, the insurance company may pay more if the business values its losses higher. I think that anyone who has worked in criminal law has seen this phenomenon, over and over and over again.

I can't quite say that the errors I see in the paper are nitpicking, but the paper is a broad overview. In order to do this correctly would require years of intensive research and a several thousand page tome filled with things like mathematical formulas and all sorts of arcane economic theorizing so that both the facts would be rock solid and the theory could be consistent in its measuring of all factors. Instead, the paper relies on other people's work and suffers thus from the flaws of that work and has to rely on the inconsistent methods by which each of the former studies reached their result. However, despite any flaws a economic dunce such as myself might imagine, as a large overview it does give us an idea of where things stand.

Of course, it's probably impossible to pin down with exactitude the cost of crime. The factors to be included would be argued from person to person. For instance, I would list MADD as an actor affecting crime costs rather than a cost itself. However, Professor Anderson lists it as a cost. Additionally, things such as the actual effect of crime on a market which has other factors beside crime as its driving factor are impossible to determine exactly. For instance, Professor Anderson attributed 50% of small arms and ammunition would not be purchased except for criminal deterrence. That strikes me as highly dubious. I doubt that 50% of small arms ammunition is used in anti-crime activities. As these points demonstrate, anything that someone comes up with will always be, in the final analysis, a guesstimate. Personally, when I saw the $3.2 trillion figure my gut feeling was that it was high. When I spoke to another person in my office about it, that person insisted that the number had to be low. I submit it for you to make your own call.

CrimLaw Around the World

1) Don't blog in Vietnam unless you want to go to prison for 10 or 12 years.

2) Egypt sentences 14 terrorists to death after the top religious official in the country approves it.

3) A rising police star in the Chinese political system gets 14 years in prison because his corruption extended to covering the murder of a British businessman by a political superior.

4) A Brazilian court orders a Google official jailed because someone else posted a political attack on YouTube.

Predictive Policing

Okay, these two may be the most annoying people I've seen on YouTube, but they do raise an interesting topic:

Computerized predictive policing. It's a wonderfully cool thing if you are a police force trying to justify your budget. However, does it really do any good in the real world?

That's an interesting question. It probably doesn't accomplish much for static crime areas. If there are big shopping outlets in an area near transient traffic or economically less well endowed areas there will always be more shoplifting there. The Last Chance trailer park down at the end of the county or the slums over on 5th street, where people who can't get anyone else to rent to them are eking out an existence will always be a place where there will be problems on Friday and Saturday nights. The one chain of convenient stores which still takes checks will be the one where people go to write bad checks. I can point to patterns of behavior in my jurisdiction consistent with all of these. I don't need a computer to do it. I guarantee that the deputies and police officers who work the streets could predict these things even better than I can, without using computers.

Where predictive policing might be more useful is in marginal areas or when crime will transfer location for some reason. A marginal area is a place where the crime rate could be significantly curtailed by a police presence. It's not Snobby Mount Gated Community or Last Chance trailer park. It's the shopping center outside a lower middle class suburb which has a mid-level crime rate that could drop quite a bit if two officers were constantly walking a beat back and forth through from store to store. A predictive model might be helpful in determining which ares could benefit most from this.

Predicting crime transfer could also be extremely useful. If the feds sweep in and clean up 5th Street so that there are no dealers left there, where will new dealers pop up? More importantly, how could police act so that fewer new dealers pop up? After all, if the predictive model says that shutting down 5th Street means that dealing will shift to 7th does it do much good to station three police cars constantly on 7th? Probably not. That will just cause it to shift to 9th instead. However, if the perdictive model states that shutting down the dealers on 5th and keeping a one car patrol on 7th, 8th, and 9th will lead to a 70% reduction in drug dealing, that would be extremely useful information.

Of course, the problem with a predictive model is that it does not prove that any individual has or will commit a crime. It can only show trends and therefore, for the predictive model to be useful officers must be tasked so that an area is constantly covered by a law enforcement presence. A city police force with 25 people on shift, or a sheriff's department with a 6 deputy shift covering an entire county, probably won't have the ability to do this. As much as we would like our law enforcement to be proactive, reactive policing will always take priority. After all, there's no police chief in the country who wants to stand in front of his city coucil and say "Well, yes, Officer Smith could have intercepted the guy who robbed the pharmacy. That would have taken him three blocks outside of his mandated area." Consequently, even if the model is correct there will be few local law enforcement agencies that will be able to use it effectively.

Attitude at Sentencing Never Pays Off

Perfecting Opening Statements

In TV shows and movies we are always shown attorneys working late into the night preparing their closing arguments so that the next day they can go into court and win the trial for the good guys. This bit of fiction never seems to play out that way in reality where I feel pretty darn lucky if I get 10 minutes to gather my thoughts and start my closing. However, there is one place where the attorney has plenty of time to craft his message: the opening statement.¹

So, how does one go about crafting an opening statement?

Well, let's first address the major error that I see from lawyers old and new. There are so many lawyers who write the whole thing out and either memorize and recite it verbatim or, worse, read it to the jury from their notepad. We've all seen it. The guy who is so obssessed with saying it exactly right that he is staring over the jurors' heads as he reels off his opening just like he did that Shakespearean passage he was required to memorize in high school.² This is only topped by the guy who never even looks at the jury as he reads his perfectly crafted opening in a flat, monotonous drone. Don't be one of these people. Please, don't be one of these people.

In fact, don't ever write your entire opening down. Outline the argument with bullet points. The shorter these are, the better they are. Some people will write entire sentences as their bullet points, but this is a failure. Basically, that's just writing out the argument in bullet form rather than paragraph form. A person who does this will most likey fall into attempting to say the sentences exactly as written in the bullet points and end up exactly as the people mentioned in the paragraph above. An example of good bullet points might be:

~ Steve Austin
~ Astronaut
~ Accident
~ Rebuilt
~ Stronger
~ Faster
~ 6 million

The bullet points are memory tags, meant to jog your memory if you pull a blank during your opening. They don't have to make sense to anyone else but you.

After you have done a bullet point outline of your opening, read it over two or three times. Then turn it over, stand up like you are in front of a jury, and deliver the opening from start to finish. Yes, I know it's goofy and you'll probably want to do it when nobody is watching (at least the first time), but how you deliver an opening is as important as what you say during it. Practice things as you intend to do them and it's easier to do them correctly when the time comes.

After you've given it a run through turn the paper back over and look to see if you forgot anything. If you got over 80% of what you put on the sheet out and you did your opening in a coherent fashion, without looking at the paper, you have delivered a solid B+ performance. Practice the opening a few more times and when you get to the point that you are doing the opening with 95% accuracy, without reading from the paper, you are in the A performance range.

Do not let the perfect become the enemy of the good. It is more important to present well than to tell the jury every last fact which you are going to show them. After all, you are going to show them the facts when you present your case - whether you told them about every last fact in your opening or not. By the time you actually do your opening you shouldn't even need that sheet of paper with the bullet points. Remember, every time you look away from the jury to that sheet of paper you are losing repoire points with the jury.

As to the content of your opening statement, that will vary from case to case and situation to situation. A basic rule is to follow the KISS principle: Keep It Simple Stupid. If a group of 8th graders sitting in the jury box wouldn't understand it you have to worry that one or two of the adult jurors might not. In other words if your opening statement includes the phrase "The evidence will establish that the affectation of orthodox antidisestablishmentarianism was a charade belying perfidy of the highest order" you had best be pulling a jury from Yale's faculty or the Curia in Rome. As we all know, you are much more likely to get a jury with homemakers and guys who have retired after 50 years of fixing truck engines. These people aren't necessarily dumb, but their life experience is different than yours. Imagine a physicst explaining loop quantum gravity to you. He'd have to use small words common to both your experiences, because if he used the technical words he used with with other phycists he might as well be reciting the Jabberwocky. The jury's in the same position in relation to you. Use common words and phrases so that everyone understands each other.

Another vital part of the opening statement is deciding format of your opening. Often this is seen as a choice between telling a story or being analytical. However, usually you have to include at least a little of both. A good way for a prosecutor to proceed is to tell the story first - "May 3rd, 2010 was a nice, pleasant, sunny day until Mr. Smith decided he couldn't stand the fact that his neighbor was playing Sweet Home Alabama for the 311th time that morning. Deciding to take action, he grabbed his rapid-firing shotgun and went next door to ask Billy Maloy to turn the music down . . ." - and then follow up with what each witness is going to state - "Officer Greene will tell you that when he arrived on the scene there were bits and pieces of stereo all over the apartment and at least 12 holes in the wall behind the stereo."

If you are a defense attorney sometimes you may want leave the story alone and just focus on the one thing that is the absolute flaw in the prosecutor's case. "Yes, ladies and gentlemen, my client did put 17 solid shot slugs into Mr. Maloy's stereo when Mr. Maloy started to play Sweet Home Alabama for the 327th time that morning. The important difference here is that under the law, if anyone plays Sweet Home Alabama more then 325 times there is an absolute right to destroy all stereo equipment used in the playing to stop the cruel and unusual punishment of innocents - it's called the Sigma Alpha Epsilon exception to the vandalism law. 327, not 311, ladies and gentlemen . . ." However, most of the time you will also want to tell your client's story and follow with some explanation as to how you will prove it.

The reason the story is told first is that this is how the jury will remember your case. The reason you go through how evidence will be presented is that it gives the jurors a sense of order and repetion leads to rememberance back in the jury room. It's the old idiom: Tell them what you're going to tell them. Tell them what you're telling them. Tell them what you told them.

And with these pearls of wisdom, I send you all out into the world to follow the Lammers' method© of creating an opening statement.


----------
¹ I think that TV and movies ignore this because the closing is the dramatic culmination of the trial while the opening is just a step in the drama.

² I still remember parts of the one I memorized: "Not that I loved Caesar less, but that I loved Rome more . . ."

Line of Duty: A Review

5 Second Review: Very, Very Good. 4.5 out of 5.

30 Second Review: In a police department rife with corruption, can its most celebrated officer be above suspicion? The leader of the anti-corruption unit doesn't think so.

Full Review: Lately Hulu has become the place I go to to find interesting shows which I would never see otherwise - usually shows from outside the United States or channels I'd never go to. Among the shows it has gotten me to watch are Little Mosque on the Prairie (Canadian: comedy about a mosque in a rural Canadian town : first three seasons are much fun), Rev (British: semi-comedy about a Church of England Priest "promoted" to become vicar of a failing church in the slums), and Teen Wolf (MTV: a serious and interesting take on the premise which is good enough that after I watched its first season on Hulu I unblocked MTV and watched a show on it for the first time in 20 years). Last week, I was flipping through Hulu and ran across Line of Duty.

Line of Duty has three main characters, but it centers around the story of Detective Chief Inspector Anthony Gates. Gates has been officer of the year for the last three years running, has the highest rate of cleared cases in the city, and is the head of TO-20 - also known as "The Big Sexy Crime Unit." Naturally, that much success cannot go unchallenged, so the head of AC-12 (the anti-corruption unit) makes it his unit's mission to take down DCI Gates.

The police force portrayed here is not pollyanaish in any way, shape, or form. In the first episode we see all sorts of institutionalized corruption. We see a botched terrorist raid being covered up, hear about the purposeful endangerment of two Catholic officers and subsequent coverup after they drive over a pipe bomb, and see a superior lean on one of his investigators to allege fewer crimes ad ignore others altogether. In response to a directive to reduce knife related crime: "Two offenders but only one knife . . . There was an opportunity with one of the offenders to miss out the knife altogether." In response to an old man whose burglary she promised to investigate: "We pursue two out of three reported crimes. We down process anything that won't quickly lead to an offender."

In this world, DCI Gates' sin is that he plays the system too well. Given first right of refusal on all investigations he takes the easy cases and dumps the hard ones on other departments. On top of this he engages in "laddering", which is the attachment of all sorts of alleged crimes to an event so that he can clear them by arrest - all the while knowing that most of the alleged crimes will never be prosecuted. Thus, he makes himself and his unit look amazing. It's more playing the game than corruption. Nevertheless, he has become a primary focus for the anti-corruption unit.

And then we see someone start to purposefully attempt to corrupt DCI Gates . . .

I won't say much more, because to do so would spoil the series. Go watch it; it's the best thing I've seen in a long while.

They'll probably let you out after you brush your teeth . . .

A Kentucky judge talks about the current situation in Kentucky with a defendant he has just sentenced.

A Graphic Representation of Virginia's Violent Crimes

Click on picture to enlarge.

Lando Law

Contradictory Evidence Rules in Virginia

As of 01 July 2012, Virginia got a brand spanking new set of evidentiary rules. The rules are numbered as the federal rules of evidence, but supposedly reflect Virginia's previously common law rules of evidence. They do not seem to do this. Of particular interest is this section:

Rule 2:102 SCOPE AND CONSTRUCTION OF THESE RULES
These Rules state the law of evidence in Virginia. They are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules shall have no effect on current law or practice on that topic.

Now, that's an interesting, and contradictory, rule for construction. We are told that these rules are exactly the same as the common law rules which have developed over the last couple centuries. This would seem to indicate that the old case law still applies. However, we are then immediately told that if these rules don't cover something the existing law remains in effect. This would seem to indicate that these rules abrogate old case law.

It's an important issue, because as you read through the new rules it becomes obvious that whoever put them together was more familiar with the federal rules than he was with the nuances of Virginia's common law rules of evidence. There are places throughout where the new rules do not track with the prior case law. For instance, everyone who practices in Virginia knows that the spousal privilege in Virginia could not be asserted by the defendant; it had to be asserted by the spouse his or herself. It was a bad rule (for all sorts of reasons), but it was the rule. Yet, if you look at Rule 2:504(B)(2) it states this:

2. Except in the prosecution for a criminal offense as set forth in subsections (B)(i), (ii) or (iii) above, in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between such person and his or her spouse during their marriage, regardless of whether the person is married to that spouse at the time the person objects to disclosure.

A plain reading of that seems to indicate that the defendant can now assert the spousal privilege. However, if you were constrained by Virginia's prior case law on this matter, you could read that to mean that the spouse called to testify can assert the privilege not to testify and as an aspect of that assertion foreclose any hearsay or other means by which that spousal communication might have come into evidence.

So what do we do? Do we contort 2:504(B)(2) to match existing case law or do we act as though the new rule abrogate the old rule?

Personally, my opinion is that the new rules will reign supreme; we may well tip-toe around the issue for a while, but in the end the rules will trump case law. The reason we really needed to adopt something along the model of the federal rules of evidence is that this is what we have all been arguing for years anyway. No one goes to law school and learns common law evidence anymore. Thus, when the last 30+ years of law students have come out they have been making arguments which track with the federal rules, not Virginia's common law. Then, they would get tripped up on things which were in Virginia's common law which were not in the federal rules. As a young lawyer, this happened to me personally when a long time practitioner pulled out the res gestae hearsay exception on me one day and I was clueless as to what he was arguing; I am sure it has happened to any number of other attorneys as well. What will happen now is that the vast majority of us will continue to argue using plain language while the new graduates will come in talking numberese ("It's a 504 violation judge") and the real sharp knives will come out in the capital murder cases where every comma in the new rules will be parsed. The new rules will prove to be an unopposable tide washing away everything that stands before them.

Felons Voting, Sa'ad El-Amin, and Civil War Veterans

Sa'ad El-Amin - now there's a name I thought I'd never see again once I left the Greater Richmond area. I think the federal government had him in prison when I left back in 2006. I never knew the man personally, but he was one of those larger than life, fascinating train wrecks that Richmon always seemed to produce and which the feds came in and pruned out every so often.

Then, as I looked through my news feeds for the last couple weeks, his name popped up. He's suing in federal court to get his right to vote restored. Okay, if you are against taking felon's ability to vote away this makes a sort of superficial sense. It's a subject which needs to have some light shone upon it and he's a significant figure who can say he's impacted. Admittedly, I thought this might lead to a constructive conversation UNTIL I saw the rationale the news sites say he is using.

For those of you who don't know, Virginia does not allow anyone who has been convicted of a felony to vote. The ability to vote can be restored by the governor and Virginia's governors, of late, seem to be falling all over themselves to restore as many felons' ability to vote as possible. In any event it's a serious topic, deserving serious debate.

Unfortunately, Mr. El-Amin's argument goes in the opposite direction. I've not seen the filing personally, but the news sites are reporting that the Argument is based upon Section 2 of the 14th Amendment, which states:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty–one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty–one years of age in such State.

This section was put in the Amendment after the failure of attempts to include a section which guaranteed voting rights for African-Americans (because of the idea's unpopularity in Northern States). The idea was that if the Southern States refused to allow African-Americans to vote then African-Americans would not be counted when it came time to apportion congressional representatives to each State. It was perhaps an idea that was over-clever by half and it failed miserably. It was never actually implimented and may be the most ignored section in the entire constitution. In fact, the only thing this section has been used for is to show the Constitution's recognition of the ability of States to deny felons the franchise. Richardson v. Ramirez, 418 U.S. 24 (1974).

And here is where the El-Amin argument comes into play. It seizes upon the phrase "except for participation in rebellion, or other crime", which excludes those individuals from the calculus in determining the number of congressional representatives for a State. The argument then goes forward to point out that when the post Civil War Virginia constitution deprived felons of the right to vote it did not deprive those who fought for the Confederacy of their right to vote, despite the fact that they were in rebellion. Going further, the argument then points out that the rebels were, with extremely rare exceptions, White and the majority of people who are currently felons are African-American. Therefore, the denial of the right to vote is unconstitutional.

There are a couple huge flaws in this argument. (1) There is nothing which requires a State to deny both rebels and felons the right to vote. (2) At the time of the inclusion of the denial in the Virginia constitution it seems likely that the number of White felons were probably the majority so that it was not racially motivated. The first flaw is obvious, but the second requires someone with more time than me to research it. However, arguing the that current effect of one factor should be compared to the effect of another factor 140 or so years ago really makes no sense.

No Weekend Jail

The Virginia Attorney General has opined that anyone convicted of a non-traffic felony in Virginia CANNOT be allowed to serve his jail time on weekends or on non-consecutive days. The argument seems solid and goes as such: the statute used to allow it, but was changed so that it no longer does. There's also an argument as to the difference "the trial" and "a trial" and the language difference's effect on whether the statute confers jurisdiction for a particular trial (the) or any trial (a).

I'm not sure why the General Assembly would think it necessary to take weekend incarceration away and leave home incarceration, work release, furloughs, and delayed reporting to jail. Nevertheless, the Attorney General's rationale seems solid.

The Law of Trespass

In Virginia, if you only read the statutes we seem to have a gap between trespass and breaking and entering (also known as statutory burglary). Under the statutes, breaking and entering (B&E) requires someone to enter a residence or business with the intent to commit a felony or an assault and battery or any type of larceny. Merely entering the residence is not enough to convict a person of B&E. This makes some sense as B&E is a felony and we don't want to convict people of felonies for all sorts of dumb reasons they might go into a place where they are not welcome (as long as they intend no harm). On the other hand, when someone goes into a place they are clearly not welcome we do want to convict them of trespass. However, the trespass statute (18.2-119) allows conviction only if the person has been banned from the property (either orally or in writing) or there is a no trespassing sign. In between the two there is a problem area that we run into far more often than I would have expected.

The two scenarios which we run into the most seem to be (1) the Goldilocks Scenario and (2) the Intoxicated Idiot.

1) The Goldilocks Scenario: We get this every so often and I'm still surprised by it. The residents of a house discover that a homeless guy is sleeping in the shed or the garage or (had a couple of these lately) wake up to find someone on the couch in the living room. Another variant of this is the landlord that goes to check his empty property and finds someone in it. In all these cases the person has not shown any intent to commit a crime beyond trespass and therefore cannot be convicted of B&E. However, he has never been banned from the property either and therefore cannot be convicted of statutory trespass.

2) The Intoxicated Idiot: Generally, this is the guy who, at two in the morning, is so drunk or high that he goes to the wrong house. Sometimes it's the next trailer over, but often he goes back to the house he grew up in (which is now lived in by an entirely different family). Quite a few of these fall under statutory trespass because person in the property yells at the guy to get out and the guy doesn't. However, in a fair number of these the lawful resident hides in the bedroom and calls the police or goes out to confront the intruder but never actually utters the magic words "Get out!" Again, there's no B&E here and, without the active banning, no statutory trespass.

So, what's the solution? Common Law Trespass. You see, Virginia Code 18.2-119 didn't set out to deal with all trespasses. It only deals with "Trespass after having been forbidden to do so." The common law is where we find the formula for dealing with other trespasses.

To be clear, under the common law not all trepasses were misdemeanors. The test as to whether an act was a common law criminal trespass can be found in Henderson v. Commonwealth, 49 Va. 708 (1852):

It is abundantly clear that the mere breaking and entering the close of another, though in contemplation of law a trespass committed [by force of arms], is only a civil injury to be redressed by action; and cannot be treated as a misdemeanor to be vindicated by indictment or public prosecution. But when it is attended by circumstances constituting a breach of the peace, such as entering the dwelling house with offensive weapons, in a manner to cause terror and alarm to the family and inmates of the house, the trespass is heightened into a public offence, and becomes the subject of a criminal prosecution.

This case, in which Henderson went onto the porch of the house and shot two dogs, seems to set out some basic parameters. Coming into the "close" is not a criminal trespass and can only be addressed civilly. The "close" is land which is surrounded by a boundary of some sort. This is not to be confused with curtilage which is the area and buildings immediately surrounding a house and used in everyday life. A close on a farm could include acres or miles of fenced in property which is far outside the curtilage.

On the other hand the same case states that when "the place where the entry is made is a dwelling house, as reason would suggest, and the peace of those abiding under the sanctity of their home and the security of their castle, would strongly require, is a most important circumstance to be taken into consideration in the aggravation of trespass [within the close] into a misdemeanor." Since this trespass actually occurred on the porch, the curtilage would also seem to be included as part of the sanctity of the home and security of the castle. It's arguable that the case only meant to include the porch as part of the residence or that maybe it counted the smoke from the firearms floating into the residence as entry into the actual residence. In any case, at the very least criminal trespass is trespass upon the residence.

The second part has to do with breaching the peace. Here we can look to Graham v. Harless, 153 Va. 228 (1929): "It is true that a mere trespass upon real or personal property, which is also the subject of a civil action, is not always a crime at common law; but it is a crime at common law if it amounts to a breach of the peace, or if it tends to or threatens a breach of the peace." Of course this is a civil case, but we see the same thing repeated in a more modern criminal case, Snead v. Commonwealth, 212 Va. 803 (1972): "Our examination of the authorities makes it clear that unless a trespass upon land or premises amounted to a breach of the peace or tended to or threatened such a breach, the trespasser was not criminally liable at common law."

An actual breach of the peace is fairly easy to establish; it's "an act of violence or an act likely to produce violence." Taylor v. Commonwealth, 11 Va. App. 649 (1991). In other words a breach of the peace is everything from a confrontation which would likely lead to violence all the way up the scale of violence to murder (most often probably a battery).

As for something which would tend to cause a breach, that would seem to be anything which could reasonably be thought to lead to a confrontation that could lead to violence. This would include things such as entering a residence without permission.

Having established that common law trespass fills the gap, we now have to establish what punishment attaches. Like most common law offenses, it would fall under 18.2-12: "A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor." So it would carry exactly the same punishment as statutory trespass, up to 12 months in jail and/or up to a $2,500 fine.

Common Law Trespass

Elements:

(1) Enter into the residence of another, AND
(2)(a) Breach the peace, OR
(2)(b) Act in a manner tending to breach the peace.

Punishment:

Up to 12 months in jail and/or up to a $2,500 fine.