03 April 2004
The threats finally got bad enough that the Tyco judge declared a mistrial.
02 April 2004
The US News has ranked my Law School (Washington & Lee) 23d in the nation. When I was there it was ranked somewhere around 18 each year. Others don't necessarily agree with the current assessment. Over at Volokh the rank shown is 15 and at Southern Appeal the rank is 18.
The rankings of schools never really effected me all that much. When I was choosing schools I came down to 4 possible choices: Creighton, Kentucky, Vanderbilt, and W&L.
Creighton was a school which had always caught my attention. It was one the schools on my short list of undergraduate schools but all the other schools dropped to the side when I got accepted into Centre. Creighton just kept drawing my attention and to this day I could not tell you why. However, in the end the fact that I could not articulate what the draw was meant I could not choose it.
Kentucky was the logical choice for me as someone who grew up in Lexington. With a pedigree from U.K. and Centre all sorts of opportunities would have awaited in employment, politics, etc. But Kentucky played games with me. I was invited to compete for a scholarship and stipend. I submitted the necessary papers and was scheduled for an interview. I showed up on the allotted date and time and they had forgotten I was coming. A Dean took me off to a room and chatted with me; she asked very general questions and apologized for doing so, telling me that someone was going to get the professor who had read my curriculum vitae and would be able to follow up more specifically. The professor finally shows up with a file in hand (I assume it was mine) and starts asking exactly the same type of general questions the Dean had been asking. Suspicious, I threw in a control question along the lines of "I understand that the undergrad has some Arabic classes. Would I be able to take one or two on the side while at law school?" The professor looked at me like I was crazy and basically asked why I would want to do that (half my resume and serious life experiences at that time involved being an Arabic linguist for the Army and actually getting deployed to a war zone in that capacity). So I knew he had not even glanced at my curriculum vitae. After the interview they hooked me up with a very disgruntled student who walked me around the school, disparaging everything in sight, and finally dumped me in a law class for a hour. For the next several months I got letters from U.K. trying to get me to commit to U.K. law; most of them mentioned the possibility that I might get the scholarship and stipend. The problem was that, just by chance, I knew someone who knew the person who got the scholarship and it was long gone. I asked around a little more and the rumor was that they never, ever gave this scholarship to someone who claimed Kentucky as his native land. Even with all the games Kentucky played, it still came close to drawing me in because it was home. If one single thing had gone right . . .
Vanderbilt: The first thing Vandy sent me upon my acceptance was a booklet which explained how to play "Shooter Bingo" and told me where everybody got drunk. Now that I look back at it, it is humorous but at the time I was appalled at the lack of seriousness. Yes, as I sat in my room in my fraternity house with at least 10 Fosters in my fridge, I was being rather hypocritical. I also got a bad taste when I called down to ask some question I considered vital at the time (and cannot remember today) and got blown off.
W&L: W&L flew someone from Virginia to Centre in order to interview those of us interested in attending law school there. The lady asked insightful questions and answered my questions and concerns well. W&L offered me a partial scholarship. It was a small school and seemed to offer many of the things that I really enjoyed at my undergrad. It was also situated in the foothills of the Appalachian Mountains (I am a big fan of mountain scenery - when my friends head to the ocean for vacations I head to the mountains). And, I must admit, there was some part of me that was drawn to go to the General's school. Everything seemed serious and professional which was something I was looking for in a graduate level experience. Of course, once I got there I found out about the Friday afternoon keggers outside the front door of the law school but by then I was happy to have them.
The rankings of schools never really effected me all that much. When I was choosing schools I came down to 4 possible choices: Creighton, Kentucky, Vanderbilt, and W&L.
Creighton was a school which had always caught my attention. It was one the schools on my short list of undergraduate schools but all the other schools dropped to the side when I got accepted into Centre. Creighton just kept drawing my attention and to this day I could not tell you why. However, in the end the fact that I could not articulate what the draw was meant I could not choose it.
Kentucky was the logical choice for me as someone who grew up in Lexington. With a pedigree from U.K. and Centre all sorts of opportunities would have awaited in employment, politics, etc. But Kentucky played games with me. I was invited to compete for a scholarship and stipend. I submitted the necessary papers and was scheduled for an interview. I showed up on the allotted date and time and they had forgotten I was coming. A Dean took me off to a room and chatted with me; she asked very general questions and apologized for doing so, telling me that someone was going to get the professor who had read my curriculum vitae and would be able to follow up more specifically. The professor finally shows up with a file in hand (I assume it was mine) and starts asking exactly the same type of general questions the Dean had been asking. Suspicious, I threw in a control question along the lines of "I understand that the undergrad has some Arabic classes. Would I be able to take one or two on the side while at law school?" The professor looked at me like I was crazy and basically asked why I would want to do that (half my resume and serious life experiences at that time involved being an Arabic linguist for the Army and actually getting deployed to a war zone in that capacity). So I knew he had not even glanced at my curriculum vitae. After the interview they hooked me up with a very disgruntled student who walked me around the school, disparaging everything in sight, and finally dumped me in a law class for a hour. For the next several months I got letters from U.K. trying to get me to commit to U.K. law; most of them mentioned the possibility that I might get the scholarship and stipend. The problem was that, just by chance, I knew someone who knew the person who got the scholarship and it was long gone. I asked around a little more and the rumor was that they never, ever gave this scholarship to someone who claimed Kentucky as his native land. Even with all the games Kentucky played, it still came close to drawing me in because it was home. If one single thing had gone right . . .
Vanderbilt: The first thing Vandy sent me upon my acceptance was a booklet which explained how to play "Shooter Bingo" and told me where everybody got drunk. Now that I look back at it, it is humorous but at the time I was appalled at the lack of seriousness. Yes, as I sat in my room in my fraternity house with at least 10 Fosters in my fridge, I was being rather hypocritical. I also got a bad taste when I called down to ask some question I considered vital at the time (and cannot remember today) and got blown off.
W&L: W&L flew someone from Virginia to Centre in order to interview those of us interested in attending law school there. The lady asked insightful questions and answered my questions and concerns well. W&L offered me a partial scholarship. It was a small school and seemed to offer many of the things that I really enjoyed at my undergrad. It was also situated in the foothills of the Appalachian Mountains (I am a big fan of mountain scenery - when my friends head to the ocean for vacations I head to the mountains). And, I must admit, there was some part of me that was drawn to go to the General's school. Everything seemed serious and professional which was something I was looking for in a graduate level experience. Of course, once I got there I found out about the Friday afternoon keggers outside the front door of the law school but by then I was happy to have them.
Florida: Abuse of the Jury System - A judge throws a man off the jury because in the fifth day of deliberations he refused to deliberate. He also excuses two other jurors. Then, in the middle of deliberations he places two alternate jurors in the jury room and determines that he really doesn't need 12 jurors.
That's just so wrong on so many levels. Unfortunately, I have to go to court now so I don't have time for analysis. Let me just say this: Throwing a man off a jury because he has reached his conclusion, it is contrary to the conclusion of other members of the jury, and he refuses to rehash the same arguments as they try to break down his conscience is a massive slap in the face of the jury system. How can that and the other misconduct in this trial not result in a reversal?
That's just so wrong on so many levels. Unfortunately, I have to go to court now so I don't have time for analysis. Let me just say this: Throwing a man off a jury because he has reached his conclusion, it is contrary to the conclusion of other members of the jury, and he refuses to rehash the same arguments as they try to break down his conscience is a massive slap in the face of the jury system. How can that and the other misconduct in this trial not result in a reversal?
Criminal Decisions of Note 4th Circuit (Last Month):
U.S. v. Kiulin: Concerns: Sentencing Guidelines / Determination of Drug Value -Previously commented on here.
U.S. v. Mayo: Concerns: Reasonable Articulable Suspicion of an Illegal Firearm - "[U.S. v.] Burton must be understood to authorize a protective frisk only when a Terry stop is authorized by a reasonable suspicion that criminal activity is afoot. To conduct the protective frisk there must also be reasonable grounds to believe that the suspect is armed and dangerous. Absent a reasonable suspicion of criminal activity, a police officer may not simply approach a citizen, as part of a police-citizen encounter, and frisk the citizen because the officer believes that his safety is at risk." In this case the officers suspect the Defendant has a firearm concealed in his pocket because he is in a bad neighborhood, he sticks his hand in the pocket and the pocket appears heavy, he walks away from the police twice as they chase him around the block, and he appears nervous when they confront him. Therefore, they are justified in doing a Terry stop and search. ed. note - This analysis would seem to fail because it is not per se illegal to have a concealed weapon in Virginia (it is allowed with a permit). Therefore, the articulated suspicion would seem to break down to (1) He's in a bad neighborhood & (2) he didn't react with pleasant nonchalance when the police chased him around the block and physically confronted him.
U.S. v. Rouse: Concerns: Sentencing Guidelines / State & Federal Sentences - "§ 5G1.3(b) prevents the "double counting" that occurs when "separate, non-offense conduct could, absent operation of this subsection, otherwise be the basis both (1) for sentencing defendant as if that conduct had been part of the offense(s) of conviction, and (2) for additional punishment of that same conduct in another, and separate, criminal proceeding." When a prior sentence has been set by a State court involving relevant conduct in the federal conviction the federal sentence should run concurrently with the State sentence. However, if you do not raise this issue at the sentencing hearing it is not plain error and a consecutive sentence will not be overturned.
U.S. v. Brandon: Concerns: Transcript Use at Trial & Sentencing Guidelines / Career Offender -
Transcript Use:
Career Offender: In what can only be described as a very harsh but eminently defendable position the court rules that every single charge of which a Defendant has been convicted is a conviction for career offender status. ed. note: Apparently, prior to this number of convictions was determined by the sentencing event. One sentencing judgement equaled one conviction. The case seems to leave open the question as to whether a sentencing judgement for several charges arising from the same event is one conviction or several. For those of you who do not practice federal law "career offender" status causes a massive increase in the amount of time a client faces in the mandatory federal guidelines (my latest was a bump of 10 years).
U.S. v. Kiulin: Concerns: Sentencing Guidelines / Determination of Drug Value -Previously commented on here.
U.S. v. Mayo: Concerns: Reasonable Articulable Suspicion of an Illegal Firearm - "[U.S. v.] Burton must be understood to authorize a protective frisk only when a Terry stop is authorized by a reasonable suspicion that criminal activity is afoot. To conduct the protective frisk there must also be reasonable grounds to believe that the suspect is armed and dangerous. Absent a reasonable suspicion of criminal activity, a police officer may not simply approach a citizen, as part of a police-citizen encounter, and frisk the citizen because the officer believes that his safety is at risk." In this case the officers suspect the Defendant has a firearm concealed in his pocket because he is in a bad neighborhood, he sticks his hand in the pocket and the pocket appears heavy, he walks away from the police twice as they chase him around the block, and he appears nervous when they confront him. Therefore, they are justified in doing a Terry stop and search. ed. note - This analysis would seem to fail because it is not per se illegal to have a concealed weapon in Virginia (it is allowed with a permit). Therefore, the articulated suspicion would seem to break down to (1) He's in a bad neighborhood & (2) he didn't react with pleasant nonchalance when the police chased him around the block and physically confronted him.
U.S. v. Rouse: Concerns: Sentencing Guidelines / State & Federal Sentences - "§ 5G1.3(b) prevents the "double counting" that occurs when "separate, non-offense conduct could, absent operation of this subsection, otherwise be the basis both (1) for sentencing defendant as if that conduct had been part of the offense(s) of conviction, and (2) for additional punishment of that same conduct in another, and separate, criminal proceeding." When a prior sentence has been set by a State court involving relevant conduct in the federal conviction the federal sentence should run concurrently with the State sentence. However, if you do not raise this issue at the sentencing hearing it is not plain error and a consecutive sentence will not be overturned.
U.S. v. Brandon: Concerns: Transcript Use at Trial & Sentencing Guidelines / Career Offender -
Transcript Use:
The court [] made [it] clear to the jurors that the tape recording was controlling, and that the transcript was intended only as an aid in listening to the recording. Moreover, the court repeated this warning during its instructions to the jury, and it did not allow the transcripts to be sent back into the jury room while the jury was deliberating.No plain error.
Despite the district court's admirable caution, Brandon contends that the court erred in allowing use of the transcripts of the March 8 and March 19 tapes. Brandon does not actually claim that the transcripts were inaccurate in any respect. Rather, Brandon claims simply that the district court should have reviewed the transcripts and certified their accuracy--on the court's own initiative, no less, since Brandon never objected at trial to the transcripts nor asked the court to undertake any sort of review. Because Brandon never objected during his trial to the transcripts' use, we review his claim for plain error. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Higgs, 353 F.3d 281, 309 (4th Cir.2003).
Career Offender: In what can only be described as a very harsh but eminently defendable position the court rules that every single charge of which a Defendant has been convicted is a conviction for career offender status. ed. note: Apparently, prior to this number of convictions was determined by the sentencing event. One sentencing judgement equaled one conviction. The case seems to leave open the question as to whether a sentencing judgement for several charges arising from the same event is one conviction or several. For those of you who do not practice federal law "career offender" status causes a massive increase in the amount of time a client faces in the mandatory federal guidelines (my latest was a bump of 10 years).
01 April 2004
In reference to my post on Gould I received an e-mail from JKH stating:
As I have stated previously, my problem is with the courts. The courts need to be able to recognize the fact that while an act might be reasonable in the moment it is not therefore constitutional. A trial judge should be able to look down from his bench, tell the officer that he understands and even approves of the actions taken for safety reasons but also be able to explain to the officer that, by virtue of the circumstances the officer got drawn over the constitutional line and the evidence is not admissible. An appellate court must be able to do this. The danger here is that, in this era of continued pressure to crack down on drugs (or whatever the immediate political hot-potato is), a group of street drug officers (in my experience the people most willing to push the bubble) shows up at a house, gets Momma to let them into the living room and then instantly fans out to do a Buie search of the house while Momma stands there in shock - because, drug dealers often use firearms and resort to violence. Therefore, Little Johnny, who has been dealing marijuana, is potentially dangerous to the officers and they must do a Buie search if they are going to stand in the living room and ask Momma when she expects Johnny back.
I'd like to say that I'm exagerating there but I can't. I would bet procedure in the 5th Circuit is already being adapted and this same issue will be pushed in other Circuits and States soon.
Just discovered your blog today following links about US v. Gould. If the standard is do we (police) feel threatened, the answer will always be yes, that is the essence of our training. And going into harm's way is our job. Your worst fears will, I fear, be realized. I wish that the first impression of this particular point had involved an alleged threat against used car salesmen rather than judges, it just might have had a different result.Actually, I don't have a whole lot of a problem with the officers' actions. When they saw that a man whom they believed was dangerous was not where his roomate said he was they did the prudent thing and checked to make sure nobody would pop out of a closet and shoot them in the back as they left. In so doing they crossed a constitutional line but their objective, at that point, is to make sure that they get out alive to argue that on another day.
Even though I have spent a decade arresting people, I always remember the oath I take as an elected official to defend the Constitution -- it (the oath) doesn't say, except for the parts that are inconvenient for law enforcement. If it did, it would make all the Bill of Rights a dead letter.
As I have stated previously, my problem is with the courts. The courts need to be able to recognize the fact that while an act might be reasonable in the moment it is not therefore constitutional. A trial judge should be able to look down from his bench, tell the officer that he understands and even approves of the actions taken for safety reasons but also be able to explain to the officer that, by virtue of the circumstances the officer got drawn over the constitutional line and the evidence is not admissible. An appellate court must be able to do this. The danger here is that, in this era of continued pressure to crack down on drugs (or whatever the immediate political hot-potato is), a group of street drug officers (in my experience the people most willing to push the bubble) shows up at a house, gets Momma to let them into the living room and then instantly fans out to do a Buie search of the house while Momma stands there in shock - because, drug dealers often use firearms and resort to violence. Therefore, Little Johnny, who has been dealing marijuana, is potentially dangerous to the officers and they must do a Buie search if they are going to stand in the living room and ask Momma when she expects Johnny back.
I'd like to say that I'm exagerating there but I can't. I would bet procedure in the 5th Circuit is already being adapted and this same issue will be pushed in other Circuits and States soon.
Martha
The prosecutors must be frothing at the mouth right about now. They knew a motion to set aside the verdict would come for some reason but I'm sure they didn't expect one of the jurors to make it easy for the Defense. And then a juror steps up to the mike and starts talking about how this verdict is a victory for the average guy and how the guilty verdict may have been partially based on the fact that celebrities were in the gallery in support of Martha.
For some reason the Defense team decides there might be a reason to investigate this guy.
Et voila, it turns out that when asked if he had had previous encounters with the legal system the juror indicated none: "he had been arrested for assault on a woman with whom he was living and that he had been sued on at least three occasions." A clear lie or purposeful ommission (I haven't seen the questionare so I don't know which). The guy also tried to get money to appear on news shows in order to discuss the verdict.
As a defense attorney I must say that this is manna from the heavens. A juror who is willing to perjure himself to get on a jury and then runs for a camera as soon as the trial is over? Short of finding out that one of the jurors was actually related to a party, I'm hard pressed to think of a more compelling reason for a mistrial. I'd say that the judge will probably still reject the motion to set aside the verdict (judges are always loath to set aside jury guilty verdicts) but it makes the motion a very, very close issue. And it becomes issue number one on the appeal.
Significant Published Criminal Decisions in Virginia (March):
Virginia Supreme Court:
Kingsbur v. Commonwealth: Concerning: Felon in Possession of Firearm - This court stated in Armstrong v. Commonwealth that:
Commonwealth v. Duncan: Concerning: The meaning of "reckless disregard for human life" in a child neglect statute - The language "does not limit the prohibited conduct to acts and omissions that subject a child to an actual risk of death . . . [t]herefore, we hold that such "reckless disregard" can be shown by conduct that subjects a child to a substantial risk of serious injury, as well as to a risk of death, because exposure to either type of risk can endanger the child's life."
Commonwealth v. Jones: Concerning: Inevitable Discovery - The Court overturns an 18 year old precedent out of the Court of Appeals and rules that in order for inevitable discovery to apply to evidence which is found in an unconstitutional manner there is no requirement that "that the police also prior to the misconduct were actively pursuing [an] alternative line of investigation."
Virginia Court of Appeals:
Sykes v. Commonwealth: Concerns: The presumption of guilt under bad check statutes - The presumption of guilt under Va. Code sec. 18.2-183 applies if the check was written on an account which does not exist and an account does not exist if it was closed when the check was written.
Vester v. Commonwealth: Concerns: Prior convictions which must be proven for a felony DUI - Whether or not Defendant's counsel on his first two DUI convictions was ineffective is irrelevant. He had counsel on his first two convictions and therefore (no matter how incompetent the counsel may have been) a collateral attack on the prior convictions is forbidden.
Bragg v. Commonwealth: Concerns: Single Larceny Doctrine - As treasurer, Defendant wrote 142 checks, embezzling $82,130.40 from December 1999 through January 2002. The prosecution divided this into 5 separate, consecutive time periods and charged 5 embezzlements. The majority holds that the single larceny doctrine does not apply because the "acts" are not contemporaneous and came from separate impulses. ed. note - The dissent pegs the flaws of the majority's decision to the wall for the whole world to see which isn't hard because the appellate courts have not really been rational in their application of this doctrine. They either need to start applying it logically across the board in all criminal matters or they need to get rid of it.
Branch v. Commonwealth: Concerns: Mens Rea in Felon in possession of a firearm cases: A Defendant does not have to know that his prior conviction was a felony in order to be convicted as a felon in possession of a firearm. ed. note - A Defendant not knowing if his prior conviction was a felony happens more often than you would think. A lot of people think that if the "active" sentence is less than a year they were convicted of a misdemeanor.
Reeves v. Virginia: Defendant tries to raise as an issue a violation of Virginia law in that jurors were allowed to self-select for a criminal trial rather than being randomly selected. The facts are too muddled to support the appeal.
Carter v. Commonwealth (en banc): Considering: Does one actually have to be able to harm someone to commit an assault? - One does not have to have the ability to harm anyone in order to be convicted of an assault; one needs only to threaten. ed. note - The result here is skewed because of the eagerness to punish someone for doing something as stupid as the Defendant did (point his finger like a gun at an officer and pretend to shoot; it's a miracle Carter is alive today). The majority gives a sweeping analysis of the law as it has developed over the last couple hundred years. The dissent gives a particularized breakdown of Virginia caselaw and points out that as recently as 2003 (Zimmerman v. Commonwealth) the Virginia Supreme Court has specifically held that an ability to harm is necessary for an assault.
Jarrett v. Commonwealth: Law enforcement's relationship with a cyber-vigilante including prior requests for his aid in another case, copious amounts of praise for his activities, and encouragement to report anything else he finds does not make the cyber-vigilante a government agent when he engaged in activities which would be clear constitutional violations and forwards all the information - after the fact - to law enforcement. ed. note - This seems to me an extremely close call but the majority seems to have the right of it. However, I have not done extensive research into this matter and it should be noted that apparently the federal court suppressed the evidence after finding agency.
Virginia Supreme Court:
Kingsbur v. Commonwealth: Concerning: Felon in Possession of Firearm - This court stated in Armstrong v. Commonwealth that:
Common sense and experience leave no room for doubt that an instrument originally designed, made, and intended to expel a projectile by force of an explosion can lose this characteristic in many ways such that it would no longer be fairly considered a firearm. However, we express no opinion here on the degree of disrepair or alteration that would cause an instrument to no longer qualify as a firearm under Code sec. 18.2-308.2.However, the prosecution is not required to prove that the weapon has not reached the stage where it is no longer a firearm. The prosecution need only prove that the item "was designed, made, and intended to fire or expel a projectile by means of an explosion." Inoperability because parts are missing just means it is a firearm in need of repair and is still illegal to possess ("the evidence showed that the handgun at issue could not be test fired, did not function, was missing parts, and "came apart" in Kingsbur's hands when he first picked it up").
Commonwealth v. Duncan: Concerning: The meaning of "reckless disregard for human life" in a child neglect statute - The language "does not limit the prohibited conduct to acts and omissions that subject a child to an actual risk of death . . . [t]herefore, we hold that such "reckless disregard" can be shown by conduct that subjects a child to a substantial risk of serious injury, as well as to a risk of death, because exposure to either type of risk can endanger the child's life."
Commonwealth v. Jones: Concerning: Inevitable Discovery - The Court overturns an 18 year old precedent out of the Court of Appeals and rules that in order for inevitable discovery to apply to evidence which is found in an unconstitutional manner there is no requirement that "that the police also prior to the misconduct were actively pursuing [an] alternative line of investigation."
Virginia Court of Appeals:
Sykes v. Commonwealth: Concerns: The presumption of guilt under bad check statutes - The presumption of guilt under Va. Code sec. 18.2-183 applies if the check was written on an account which does not exist and an account does not exist if it was closed when the check was written.
Vester v. Commonwealth: Concerns: Prior convictions which must be proven for a felony DUI - Whether or not Defendant's counsel on his first two DUI convictions was ineffective is irrelevant. He had counsel on his first two convictions and therefore (no matter how incompetent the counsel may have been) a collateral attack on the prior convictions is forbidden.
Bragg v. Commonwealth: Concerns: Single Larceny Doctrine - As treasurer, Defendant wrote 142 checks, embezzling $82,130.40 from December 1999 through January 2002. The prosecution divided this into 5 separate, consecutive time periods and charged 5 embezzlements. The majority holds that the single larceny doctrine does not apply because the "acts" are not contemporaneous and came from separate impulses. ed. note - The dissent pegs the flaws of the majority's decision to the wall for the whole world to see which isn't hard because the appellate courts have not really been rational in their application of this doctrine. They either need to start applying it logically across the board in all criminal matters or they need to get rid of it.
Branch v. Commonwealth: Concerns: Mens Rea in Felon in possession of a firearm cases: A Defendant does not have to know that his prior conviction was a felony in order to be convicted as a felon in possession of a firearm. ed. note - A Defendant not knowing if his prior conviction was a felony happens more often than you would think. A lot of people think that if the "active" sentence is less than a year they were convicted of a misdemeanor.
Reeves v. Virginia: Defendant tries to raise as an issue a violation of Virginia law in that jurors were allowed to self-select for a criminal trial rather than being randomly selected. The facts are too muddled to support the appeal.
Carter v. Commonwealth (en banc): Considering: Does one actually have to be able to harm someone to commit an assault? - One does not have to have the ability to harm anyone in order to be convicted of an assault; one needs only to threaten. ed. note - The result here is skewed because of the eagerness to punish someone for doing something as stupid as the Defendant did (point his finger like a gun at an officer and pretend to shoot; it's a miracle Carter is alive today). The majority gives a sweeping analysis of the law as it has developed over the last couple hundred years. The dissent gives a particularized breakdown of Virginia caselaw and points out that as recently as 2003 (Zimmerman v. Commonwealth) the Virginia Supreme Court has specifically held that an ability to harm is necessary for an assault.
In this jurisdiction, we adhere to the common law definition of assault, there having been no statutory change to the crime. In order to constitute an assault, there must be an attempt with force and violence, to do some bodily hurt to another, whether from wantonness or malice, by means calculated to produce the end if carried into execution; it is any act accompanied with circumstances denoting an intention, coupled with a present ability, to use actual violence against another person.The majority's decision is clearly wrong.
Jarrett v. Commonwealth: Law enforcement's relationship with a cyber-vigilante including prior requests for his aid in another case, copious amounts of praise for his activities, and encouragement to report anything else he finds does not make the cyber-vigilante a government agent when he engaged in activities which would be clear constitutional violations and forwards all the information - after the fact - to law enforcement. ed. note - This seems to me an extremely close call but the majority seems to have the right of it. However, I have not done extensive research into this matter and it should be noted that apparently the federal court suppressed the evidence after finding agency.
31 March 2004
The Curmudgeonly Clerk discusses Defendants who copyright their names and then sue everyone in the judicial system who dares use the name.
You'll remember that a while back there was a day when I had to do a jury on the fly (see Thursday in this post). I am in the midst of appealing part of the decison now and thought I'd post the objection for the main issue I'm raising but the transcript of that just isn't as articulate as I remembered so I thought I'd post my closing argument instead. The names are changed but I left in all the flaws - some are mine, some are in the transcription, and none are pertinent to the appeal so it was not necessary to order a new transcript. Mr. "Smith" is the Defendant.
MR. LAMMERS: Thank you, Your Honor.
May it please the Court, Madame Commonwealth. Ladies and gentlemen, you heard the Commonwealth's attorney come up here and thank you because your being here was essential to the administration of justice. I don't like to think of it that way. That seems more to me like you are a cog in a machine getting them where they want to get them.
I personally like to think that juries are here as a check on the system to keep people from just flowing through. And as such and as this case demonstrates, juries are obviously brought in on the tougher cases. They aren't bought in on the cases where it is very clear somebody walks in, you know, grabs $200 worth of stuff and runs out the door and starts beating the officer as the officer walks up. You know, those are clear cut. You don't see those in front of juries a whole lot of times.
What we have got here now as the Commonwealth said, there is not a whole lot there to argue about the concealment, about that charge. You can go back in and discuss that one and come to whatever conclusion you wish. And I think what you can see today is that everyone has been pretty honest about that.
Mr. Smith, Ms. Jones and the officer, they all talk about how, you know, he had something in his pants. It was a fairly honest statement all around. And I think that you all have to go back and deal with that one, as much as I would like to be able to come up with some wonderful argument so that you wouldn't have to deal with that one. But I think you do. Think about it a little bit.
Now, as the Judge has told you the standard in a criminal case is beyond a reasonable doubt. I like to put that a little bit in perspective. Now, even if you go back today and find Mr. Smith not guilty, you are not slapping the officer in the face with that. Because you have got to understand that the officer is held to a much lower standard. We do that on purpose. We hold them to a standard that is called probable cause. The standard we hold officers to is probable cause, which it means it is less than probable which is kind of a weird way to put it. The way that I like to think of it is there is probably a cause, probably a reason for the officer to do what he did, to file the charge.
In that case, it is one of those things where the fact that the officer filed the charge doesn't mean someone is guilty. We do that on purpose. Because if someone is running out of the bank as the alarm is going off and he has gun in his hands, we really don't want the officer sitting there thinking, okay, that might be the security guard or that might be the bank robber. You know, we don't want to put the officer in danger so we hold them to that lower standard.
The next standard about that would be what we use in civil trials and that is called preponderance of the evidence. That is where something probably is true. I guess we hold only for money, so we only do that probable.
Then, above that there is something called clear and convincing, which for the life of me I have never been able to get anybody to give me a straight definition on it. But it is above probable and below beyond a reasonable doubt.
Beyond a reasonable doubt is if there is not any other reasonable explanation.
You come in today and you have to weigh the witnesses. Now, obviously, Mr. Smith has a stake in this in saying that it happened a certain way. You know, and that is -- We all know that, that is common sense.
The officer comes in and he has made the charge. You know, he is going to come in -- I am not going to say he is going to lie, but he is going to remember it and he is going to say it in a way that is helpful to the case.
Now, the one person we have in here who is not going to go to jail, doesn't reflect on what she has done or anything is the aunt. It really kind of grates on me that we keep getting told that, well, it is possible that, you know, it happened and she didn't see it. It is possible. She is standing, I think she said from about where that witness stand is to here and she never looks away. She sees it.
Now, the officer tries to take control of the situation, as he is trained to do. He tries to take control of the situation. He puts Mr. Smith and grabs his arm. The testimony of both her and Mr. Smith is he grabs it to put it back behind his back, takes control of him, puts him down. I imagine because they were struggling, he is pretty rough with him.
There again, that is an officer taking care of himself and you can't fault him for that. But both of their testimony is that he didn't turn around and punch the officer. We can see the disparity among these two. I think there is a fairly good reason why he wouldn't turn around and punch that officer. It wouldn't be the sanest thing in the world to do.
I think he probably struggled and probably tried to get away. Now, do I think he put the kind of thought the Commonwealth's attorney seems to be thinking about it, you know, oh, my God, I have got to escape and you know get out of the county, get across the state line, go to Mexico, you know?
No, I don't think he was thinking about that. I think he reacted at a gut level. You know, I think he reacted at a gut level and did the wrong thing. But he didn't attack the officer. He tried to get away. He paid the consequences. He went down. He got charged. He is here in front of you ladies and gentlemen.
Now, there is one other thing I would like to go over a little bit. You are told that, you know, that Officer Green has to be engaged in the performance of his public duty as a law enforcement officer. The officer was plainly truthful to you on the stand that at the time he is being paid by Wal-Mart. He was working security for Wal-Mart.
I really don't like to argue about kind of technical things like that, but I think it is something I am obligated to bring before you. He is not getting paid at that point by Chesterfield County. I mean, he is not getting paid by the State or by Chesterfield. He is getting paid by Wal-Mart. He is working for Wal-Mart.
Now, when he goes to intervene, he is intervening for Wal-Mart. Now, he may intervene further down the road because of certain powers he is granted constantly as an officer as long as he is in Chesterfield County. But, if he was constantly twenty-four hours a day, seven days a week an officer and everything he did was as an officer, you know, whether he was getting paid by Chesterfield or not no matter what he was doing, whether he was getting paid by someone else or not, well then there would be no reason for this instruction here that Officer Green was engaged in the performance of his public duties as a law enforcement officer at the time. So, that is something that I think you have to consider. Like I said, I really don't care to argue those things, but I think it is something that has to be brought up to you all.
In the end, ladies and gentlemen, I think this is a tough case because your gut tells you one thing. We all want to believe the officer is right. I mean, it is just a natural instinct. You want to believe the guy in uniform, the guy out there putting his life on the line doing things for us is right.
I am not asking you here to, you know, use your guts so much. I am asking you here to use your mind and analyze what you have been shown. You have been shown one lady here that nothing has been shown that she is not credible. There is nothing that the Commonwealth has shown to you that she is not credible.
They have hung -- Their best argument they have hung on her is, well, it is possible she didn't see it. That doesn't mean she is not credible. I don't think that that statement -- I mean, it is possible that there is a leprechaun inside this thing [the podium] right now. I don't think so. I am not going to open it. But it is possible. Anything is possible. But it is not likely that if she is standing from there to there that she didn't see something as significant as what they are claiming occurred.
At this point I have to concede the podium back to the Commonwealth's attorney and she is going to stand up here and she is going to tell you why I am wrong about everything I just told you. It happens every time. I sit over here and grit my teeth because I can't get back up and say anything. We have to stop it or lawyers can argue all day long everyday.
So, I have to ask you when you go back to think about what I would answer to what she is saying. Put some analysis into it. Think about what has been said, what is going on.
Well, I thank you ladies and gentlemen. Thank you for your help.
MR. LAMMERS: Thank you, Your Honor.
May it please the Court, Madame Commonwealth. Ladies and gentlemen, you heard the Commonwealth's attorney come up here and thank you because your being here was essential to the administration of justice. I don't like to think of it that way. That seems more to me like you are a cog in a machine getting them where they want to get them.
I personally like to think that juries are here as a check on the system to keep people from just flowing through. And as such and as this case demonstrates, juries are obviously brought in on the tougher cases. They aren't bought in on the cases where it is very clear somebody walks in, you know, grabs $200 worth of stuff and runs out the door and starts beating the officer as the officer walks up. You know, those are clear cut. You don't see those in front of juries a whole lot of times.
What we have got here now as the Commonwealth said, there is not a whole lot there to argue about the concealment, about that charge. You can go back in and discuss that one and come to whatever conclusion you wish. And I think what you can see today is that everyone has been pretty honest about that.
Mr. Smith, Ms. Jones and the officer, they all talk about how, you know, he had something in his pants. It was a fairly honest statement all around. And I think that you all have to go back and deal with that one, as much as I would like to be able to come up with some wonderful argument so that you wouldn't have to deal with that one. But I think you do. Think about it a little bit.
Now, as the Judge has told you the standard in a criminal case is beyond a reasonable doubt. I like to put that a little bit in perspective. Now, even if you go back today and find Mr. Smith not guilty, you are not slapping the officer in the face with that. Because you have got to understand that the officer is held to a much lower standard. We do that on purpose. We hold them to a standard that is called probable cause. The standard we hold officers to is probable cause, which it means it is less than probable which is kind of a weird way to put it. The way that I like to think of it is there is probably a cause, probably a reason for the officer to do what he did, to file the charge.
In that case, it is one of those things where the fact that the officer filed the charge doesn't mean someone is guilty. We do that on purpose. Because if someone is running out of the bank as the alarm is going off and he has gun in his hands, we really don't want the officer sitting there thinking, okay, that might be the security guard or that might be the bank robber. You know, we don't want to put the officer in danger so we hold them to that lower standard.
The next standard about that would be what we use in civil trials and that is called preponderance of the evidence. That is where something probably is true. I guess we hold only for money, so we only do that probable.
Then, above that there is something called clear and convincing, which for the life of me I have never been able to get anybody to give me a straight definition on it. But it is above probable and below beyond a reasonable doubt.
Beyond a reasonable doubt is if there is not any other reasonable explanation.
You come in today and you have to weigh the witnesses. Now, obviously, Mr. Smith has a stake in this in saying that it happened a certain way. You know, and that is -- We all know that, that is common sense.
The officer comes in and he has made the charge. You know, he is going to come in -- I am not going to say he is going to lie, but he is going to remember it and he is going to say it in a way that is helpful to the case.
Now, the one person we have in here who is not going to go to jail, doesn't reflect on what she has done or anything is the aunt. It really kind of grates on me that we keep getting told that, well, it is possible that, you know, it happened and she didn't see it. It is possible. She is standing, I think she said from about where that witness stand is to here and she never looks away. She sees it.
Now, the officer tries to take control of the situation, as he is trained to do. He tries to take control of the situation. He puts Mr. Smith and grabs his arm. The testimony of both her and Mr. Smith is he grabs it to put it back behind his back, takes control of him, puts him down. I imagine because they were struggling, he is pretty rough with him.
There again, that is an officer taking care of himself and you can't fault him for that. But both of their testimony is that he didn't turn around and punch the officer. We can see the disparity among these two. I think there is a fairly good reason why he wouldn't turn around and punch that officer. It wouldn't be the sanest thing in the world to do.
I think he probably struggled and probably tried to get away. Now, do I think he put the kind of thought the Commonwealth's attorney seems to be thinking about it, you know, oh, my God, I have got to escape and you know get out of the county, get across the state line, go to Mexico, you know?
No, I don't think he was thinking about that. I think he reacted at a gut level. You know, I think he reacted at a gut level and did the wrong thing. But he didn't attack the officer. He tried to get away. He paid the consequences. He went down. He got charged. He is here in front of you ladies and gentlemen.
Now, there is one other thing I would like to go over a little bit. You are told that, you know, that Officer Green has to be engaged in the performance of his public duty as a law enforcement officer. The officer was plainly truthful to you on the stand that at the time he is being paid by Wal-Mart. He was working security for Wal-Mart.
I really don't like to argue about kind of technical things like that, but I think it is something I am obligated to bring before you. He is not getting paid at that point by Chesterfield County. I mean, he is not getting paid by the State or by Chesterfield. He is getting paid by Wal-Mart. He is working for Wal-Mart.
Now, when he goes to intervene, he is intervening for Wal-Mart. Now, he may intervene further down the road because of certain powers he is granted constantly as an officer as long as he is in Chesterfield County. But, if he was constantly twenty-four hours a day, seven days a week an officer and everything he did was as an officer, you know, whether he was getting paid by Chesterfield or not no matter what he was doing, whether he was getting paid by someone else or not, well then there would be no reason for this instruction here that Officer Green was engaged in the performance of his public duties as a law enforcement officer at the time. So, that is something that I think you have to consider. Like I said, I really don't care to argue those things, but I think it is something that has to be brought up to you all.
In the end, ladies and gentlemen, I think this is a tough case because your gut tells you one thing. We all want to believe the officer is right. I mean, it is just a natural instinct. You want to believe the guy in uniform, the guy out there putting his life on the line doing things for us is right.
I am not asking you here to, you know, use your guts so much. I am asking you here to use your mind and analyze what you have been shown. You have been shown one lady here that nothing has been shown that she is not credible. There is nothing that the Commonwealth has shown to you that she is not credible.
They have hung -- Their best argument they have hung on her is, well, it is possible she didn't see it. That doesn't mean she is not credible. I don't think that that statement -- I mean, it is possible that there is a leprechaun inside this thing [the podium] right now. I don't think so. I am not going to open it. But it is possible. Anything is possible. But it is not likely that if she is standing from there to there that she didn't see something as significant as what they are claiming occurred.
At this point I have to concede the podium back to the Commonwealth's attorney and she is going to stand up here and she is going to tell you why I am wrong about everything I just told you. It happens every time. I sit over here and grit my teeth because I can't get back up and say anything. We have to stop it or lawyers can argue all day long everyday.
So, I have to ask you when you go back to think about what I would answer to what she is saying. Put some analysis into it. Think about what has been said, what is going on.
Well, I thank you ladies and gentlemen. Thank you for your help.
30 March 2004
With the media doing a full court press on juror number four and a judge who is holding the jury hostage, it looks as though the holdout juror may be caving in in the Tyco trial.
Yet another decision from the federal supreme court which tracks with my assertion that you have no 4th Amendment rights when you enter a car.
A Week in the Life of a Criminal Defense Lawyer
Last week was supposed to be a week of vacation. The State prosecutors were off on one of their semi-yearly private CLEs from Monday thru Thursday (having never been privy to one of these, I can only assume that the prosecutors get together to bad-mouth innocent defense attorneys & plot ways to invalidate those pesky Constitutional rights). It has been at least 2 years since I last took an actual vacation and I wasn't sure exactly what I was going to do but I blocked the week off a couple months back, determined to devote it to doing something non-legal. Then I screwed up and let a judge schedule me for court on the 26th. It wasn't a fatal error; I could get someone to cover one case for me. However, the judge, not having been briefed on my vacation plans, for some reason assumed I'd be in court that day and appointed 3 other clients for me to represent. That killed any real travel plans but I was still determined to take the rest of the week for myself. Then a clerk from the federal district court called the week before and asked me to take a case. As much as I might have wanted the time off there is no way I could turn that down (the federal system pays well enough that a couple cases a month will mean I can pay my bills on time). So, I take the case and have an arraignment in federal district court scheduled for Monday morning. Thus, the stage is set for my week.
Monday: I drive to Richmond a hour early so that I can go to the Marshal's office and speak with my client (I had been unable to get out to see my client in the Outer-Mongolia Regional Jail). Then I go off to the court room to sit and wait for my client's initial arraignment. As I'm sitting there admiring the dark wood carved fasces on the judge's bench, the marshals get my attention and point out that my client's mother and father are there and want to talk to me. I go out in the hall with them and they start telling me about how Client has just gotten a job which he will lose if he does not get a bond. I have to explain to them that he is facing 21-27 years (career offender) and he is not going to get a bond. Then someone sticks his head out of the courtroom and tells me they are calling my client's case so I hustle back in. The initial arraignment is pro-forma and done in less than ten minutes. I turn to my right and shake the prosecutor's hand, exchange pleasantries (he graduated from Washington & Lee Law the same year I did and always seemed like a decent guy), and head down to the Marshal's office to talk to my client again for a few minutes. Then I headed back out to Chesterfield County. I did spend the afternoon in my office but I must admit that most of that time was spent watching DirecTv rather than accomplishing anything.
Tuesday: Having not done paperwork I should have Monday afternoon because of federal filing deadlines I have to go into the office. However, in an act of breathtakingly insignificant defiance, I go to the office in jeans and a t-shirt (not exactly sure whom I was defying as I am the boss, owner and sole employee of Lammers Law Office). While I'm sitting there a call comes in from a federal judge's clerk who is conferencing me with an AUSA and they are trying to bump up a re-arraignment and sentencing under a plea agreement. We all agree to set it for Thursday morning at 10 a.m. Immediately after the conference call ends I attempt to call Client. The entire time I have represented him this client has been easy to reach and he knows that he is supposed to be ready to come in for his court hearing at a moment's notice. Naturally, when I call his number his phone is dead. And it's way too late to send him a letter. Great.
Wednesday: I get up, put on a suit, and (after catching lunch with some buddies) head to my client's home address. I drive, and drive, and drive, and drive, and drive. Finally, off some country road at least ½ hour south of Petersburg I find the address. I walk up to the front door warily eying the “Beware of Dog” and “No Trespassing” signs. When I ring the doorbell my client's mother comes out in her pink bathrobe and is mortified (I interrupted her doing laundry). She lets me in and quickly runs to the back to get some clothes on; the dogs turn out to be a female Lab and the nicest Rotty I've ever met – both of which are extremely interested in sniffing at me because they can smell my dogs and cats. When Mom comes back out she is able to give me Client's cell phone number (woulda been nice if he'd given me that number) and I call him and tell him to be in court the next day.
Driving back up I-95 there is a wreck which keeps me from traveling over 25 mph or getting into the right hand lane to make my turnoff into Chesterfield County. So I end up in Richmond. Trying to make lemons out of that lemonade, I make a trip to the US Attorney's office to pick up discovery on a case which an AUSA told me would be ready Monday. It's not ready. The AUSA comes out apologizes and, when I tell him I will be back on Thursday, tells me he can have it ready by the time I next swing by the office.
Thursday: I arrive at court about 30 minutes early. We all sit around nervously for a while until court starts but the hearing goes off like clockwork, the plea agreement is entered, and my client is sentenced to community service for conspiracy to distribute various drugs. Then I walk 4 blocks over and, lo and behold, the AUSA was true to his word – discovery is waiting for me when I arrive. I go down to the first floor and sit in the cafeteria eating a snack (breakfast) while I read the discovery. Not good. I go back up and ask the AUSA to let me have a copy of the tapes which supposedly corroborate the discovery but he does not have them; he tells me he'll get me a copy as soon as he gets one himself.
In the afternoon I drive out to the rural county I have court in on Friday in order to talk to the prosecutor. Unfortunately, he is still at the prosecutors' CLE ( I had been under the misperception that it ended on Wednesday). I drop off some papers and head back home.
Friday: I head out to the county where I have court. My first client has a show cause for not attending all the sessions of the alcohol safety program mandated because he was convicted of a DUI. He arrives with a pile of receipts showing that his wife was in the hospital at the time due to complications during pregnancy. I present the matter to the judge and she rerefers him to the program. The next client is accused of malicious wounding (maliciously causing bodily harm with intent to maim, disfigure, disable, or kill) which carries a minimum penalty of 5 years although a judge could suspend some of that. The prosecutor offers to drop it to unlawful wounding (unmaliciously causing bodily harm with intent to maim, disfigure, disable, or kill) which carries a maximum penalty of 5 years (in my client's case probably probation). Personally, I do not think my client was guilty of anything more than a battery and would have loved to take it to trial but my client proved more risk adverse than I (probably because it was his rear on the line and not mine) and took the offer. The prosecutor reduced the charge and my client waived his preliminary hearing.
My last two cases were going to take about 5 minutes combined. However, before they were called I had to sit through a long and acrimonious preliminary hearing for a malicious wounding and a trial. I think my clients were called as the last two people on the criminal docket. The first had her case continued for six months. The second had her underage possession of alcohol charge dropped by the prosecutor, pled guilty to a misdemeanor failure to appear in court and got a $50 fine.
By the time I got back to my office it was 2:30 – ½ hour after my Friday open office hours had supposedly begun. A 3L whom I had employed to do some work for me had dropped by at 2 pm to return some papers and get paid. He slipped the papers under the door, left without getting his due, and I felt like a jerk. The rest of the afternoon nobody came by the office despite the fact that I had set specific appointments for two clients during that time.
And that's what a vacation week is like for a criminal defense attorney. C'est la vie.
Last week was supposed to be a week of vacation. The State prosecutors were off on one of their semi-yearly private CLEs from Monday thru Thursday (having never been privy to one of these, I can only assume that the prosecutors get together to bad-mouth innocent defense attorneys & plot ways to invalidate those pesky Constitutional rights). It has been at least 2 years since I last took an actual vacation and I wasn't sure exactly what I was going to do but I blocked the week off a couple months back, determined to devote it to doing something non-legal. Then I screwed up and let a judge schedule me for court on the 26th. It wasn't a fatal error; I could get someone to cover one case for me. However, the judge, not having been briefed on my vacation plans, for some reason assumed I'd be in court that day and appointed 3 other clients for me to represent. That killed any real travel plans but I was still determined to take the rest of the week for myself. Then a clerk from the federal district court called the week before and asked me to take a case. As much as I might have wanted the time off there is no way I could turn that down (the federal system pays well enough that a couple cases a month will mean I can pay my bills on time). So, I take the case and have an arraignment in federal district court scheduled for Monday morning. Thus, the stage is set for my week.
Monday: I drive to Richmond a hour early so that I can go to the Marshal's office and speak with my client (I had been unable to get out to see my client in the Outer-Mongolia Regional Jail). Then I go off to the court room to sit and wait for my client's initial arraignment. As I'm sitting there admiring the dark wood carved fasces on the judge's bench, the marshals get my attention and point out that my client's mother and father are there and want to talk to me. I go out in the hall with them and they start telling me about how Client has just gotten a job which he will lose if he does not get a bond. I have to explain to them that he is facing 21-27 years (career offender) and he is not going to get a bond. Then someone sticks his head out of the courtroom and tells me they are calling my client's case so I hustle back in. The initial arraignment is pro-forma and done in less than ten minutes. I turn to my right and shake the prosecutor's hand, exchange pleasantries (he graduated from Washington & Lee Law the same year I did and always seemed like a decent guy), and head down to the Marshal's office to talk to my client again for a few minutes. Then I headed back out to Chesterfield County. I did spend the afternoon in my office but I must admit that most of that time was spent watching DirecTv rather than accomplishing anything.
Tuesday: Having not done paperwork I should have Monday afternoon because of federal filing deadlines I have to go into the office. However, in an act of breathtakingly insignificant defiance, I go to the office in jeans and a t-shirt (not exactly sure whom I was defying as I am the boss, owner and sole employee of Lammers Law Office). While I'm sitting there a call comes in from a federal judge's clerk who is conferencing me with an AUSA and they are trying to bump up a re-arraignment and sentencing under a plea agreement. We all agree to set it for Thursday morning at 10 a.m. Immediately after the conference call ends I attempt to call Client. The entire time I have represented him this client has been easy to reach and he knows that he is supposed to be ready to come in for his court hearing at a moment's notice. Naturally, when I call his number his phone is dead. And it's way too late to send him a letter. Great.
Wednesday: I get up, put on a suit, and (after catching lunch with some buddies) head to my client's home address. I drive, and drive, and drive, and drive, and drive. Finally, off some country road at least ½ hour south of Petersburg I find the address. I walk up to the front door warily eying the “Beware of Dog” and “No Trespassing” signs. When I ring the doorbell my client's mother comes out in her pink bathrobe and is mortified (I interrupted her doing laundry). She lets me in and quickly runs to the back to get some clothes on; the dogs turn out to be a female Lab and the nicest Rotty I've ever met – both of which are extremely interested in sniffing at me because they can smell my dogs and cats. When Mom comes back out she is able to give me Client's cell phone number (woulda been nice if he'd given me that number) and I call him and tell him to be in court the next day.
Driving back up I-95 there is a wreck which keeps me from traveling over 25 mph or getting into the right hand lane to make my turnoff into Chesterfield County. So I end up in Richmond. Trying to make lemons out of that lemonade, I make a trip to the US Attorney's office to pick up discovery on a case which an AUSA told me would be ready Monday. It's not ready. The AUSA comes out apologizes and, when I tell him I will be back on Thursday, tells me he can have it ready by the time I next swing by the office.
Thursday: I arrive at court about 30 minutes early. We all sit around nervously for a while until court starts but the hearing goes off like clockwork, the plea agreement is entered, and my client is sentenced to community service for conspiracy to distribute various drugs. Then I walk 4 blocks over and, lo and behold, the AUSA was true to his word – discovery is waiting for me when I arrive. I go down to the first floor and sit in the cafeteria eating a snack (breakfast) while I read the discovery. Not good. I go back up and ask the AUSA to let me have a copy of the tapes which supposedly corroborate the discovery but he does not have them; he tells me he'll get me a copy as soon as he gets one himself.
In the afternoon I drive out to the rural county I have court in on Friday in order to talk to the prosecutor. Unfortunately, he is still at the prosecutors' CLE ( I had been under the misperception that it ended on Wednesday). I drop off some papers and head back home.
Friday: I head out to the county where I have court. My first client has a show cause for not attending all the sessions of the alcohol safety program mandated because he was convicted of a DUI. He arrives with a pile of receipts showing that his wife was in the hospital at the time due to complications during pregnancy. I present the matter to the judge and she rerefers him to the program. The next client is accused of malicious wounding (maliciously causing bodily harm with intent to maim, disfigure, disable, or kill) which carries a minimum penalty of 5 years although a judge could suspend some of that. The prosecutor offers to drop it to unlawful wounding (unmaliciously causing bodily harm with intent to maim, disfigure, disable, or kill) which carries a maximum penalty of 5 years (in my client's case probably probation). Personally, I do not think my client was guilty of anything more than a battery and would have loved to take it to trial but my client proved more risk adverse than I (probably because it was his rear on the line and not mine) and took the offer. The prosecutor reduced the charge and my client waived his preliminary hearing.
My last two cases were going to take about 5 minutes combined. However, before they were called I had to sit through a long and acrimonious preliminary hearing for a malicious wounding and a trial. I think my clients were called as the last two people on the criminal docket. The first had her case continued for six months. The second had her underage possession of alcohol charge dropped by the prosecutor, pled guilty to a misdemeanor failure to appear in court and got a $50 fine.
By the time I got back to my office it was 2:30 – ½ hour after my Friday open office hours had supposedly begun. A 3L whom I had employed to do some work for me had dropped by at 2 pm to return some papers and get paid. He slipped the papers under the door, left without getting his due, and I felt like a jerk. The rest of the afternoon nobody came by the office despite the fact that I had set specific appointments for two clients during that time.
And that's what a vacation week is like for a criminal defense attorney. C'est la vie.
29 March 2004
Thanks to Eugene Volokh for pointing this case out on the Volokh Conspiracy.
U.S. v. Gould
Facts: Police get an unsubstantiated tip that a known violent felon plans to kill a couple judges. They go to the guy's trailer and are let in by another resident (entry into the trailer is constitutional). They then go to Gould's bedroom (where the roommate has told them Gould is sleeping) and when they do not find him there conduct a search under his bed and in his two closets (finding firearms). The officers then leave the trailer and later find and arrest Gould who admits possession of the weapons.
The difficulty for the prosecution: The other resident can give the officers leave to enter the trailer but does not have the authority to allow them into Gould's bedroom. On their face both the entry into the bedroom and the subsequent search are unconstitutional.
The offered exception: The officers entered the bedroom and conducted the search as part of a "protective sweep" in order to assure their safety.
The problem with the exception: The officers could not claim probable cause because they only had a tip from a source without established reliability; thus they have to claim they were only there to talk to the guy and had no intent to arrest him. The federal supreme court has only allowed the protective sweep exception to the 4th Amendment during an arrest. The pertinent language in Maryland v. Buie, U.S., 1990, 110 S.Ct. 1093, 1098 is:
The court cites a number of cases which it claims support its position that protective sweeps are allowed once valid entry into the residence has been gained by an officer (I have not the time to check them but at least a couple appear to be inapposite plain view cases). Even later in the opinion it blows off the trial judge's finding that the police created any danger to themselves by entering the trailer and not picking up Gould later (ie: in the morning when he left for work). The trial court says they can't create a danger and then rely on it to abrogate constitutional guarantees. The appellate court says all the right things about how the officers cannot do such a thing and then makes an excuse for them doing it in this case.
Rule of the case:
Narrowest construction: Once the police have gained a valid constitutional entry into a part of a house, if the police have an articulable suspicion of danger they have a right to search any part of the house where a person could be and they are allowed to enter areas where they would otherwise be committing a clear constitutional violation.
Widest construction: If an officer has a reasonable suspicion that someone dangerous might be in a residence the officer can conduct a sweep of that residence.
Nightmare construction: If an officer is in an area he has a right, "as a precautionary matter and without probable cause or reasonable suspicion", to conduct a protective sweep of the adjoining areas. The court tries to allay this fear in Note 1 but, having witnessed the travesty of post-Long loss of rights by anyone driving a car, I have to wonder.
My Opinion: The trial court had it right when it pointed toward the officers placing themselves in danger and then taking advantage of it to do a protective sweep. Herein lies the difference between Buie and it's progeny and Gould. There is quite often danger in serving a warrant and thus the deference to officers acting under the color of one. However, if an officer is acting without a warrant, probable cause, or even a report of immediate criminal activity he cannot be allowed to choose an action which places him in danger over safer courses of action and be allowed to violate the constitution because of the choice. How hard could it have been to have someone watch Gould's place overnight and stop him when he came out the next day? Sure it would have been inconvenient but that's far from the primary consideration in a constitutional analysis. This is the point at which the court errs in its constitutional analysis.
However, if the officers come into a dangerous situation through a constitutionally valid activity I think that they are justified in a cursory Buie-style search if there is a reasonable articulable suspicion of danger based upon objective factors. I favor this narrowest interpretation of the case and hope that a wider interpretation (which will be pushed by prosecutors and law enforcement) is not adopted making our houses into places which police can enter and search at whim as Long and its ilk have made our cars.
Addendum: Other commentary can be found at Miami Federalist Society, TalkLeft, Criminal Appeal, and Rebuttable Presumption.
U.S. v. Gould
Facts: Police get an unsubstantiated tip that a known violent felon plans to kill a couple judges. They go to the guy's trailer and are let in by another resident (entry into the trailer is constitutional). They then go to Gould's bedroom (where the roommate has told them Gould is sleeping) and when they do not find him there conduct a search under his bed and in his two closets (finding firearms). The officers then leave the trailer and later find and arrest Gould who admits possession of the weapons.
The difficulty for the prosecution: The other resident can give the officers leave to enter the trailer but does not have the authority to allow them into Gould's bedroom. On their face both the entry into the bedroom and the subsequent search are unconstitutional.
The offered exception: The officers entered the bedroom and conducted the search as part of a "protective sweep" in order to assure their safety.
The problem with the exception: The officers could not claim probable cause because they only had a tip from a source without established reliability; thus they have to claim they were only there to talk to the guy and had no intent to arrest him. The federal supreme court has only allowed the protective sweep exception to the 4th Amendment during an arrest. The pertinent language in Maryland v. Buie, U.S., 1990, 110 S.Ct. 1093, 1098 is:
[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.How the appellate court gets around Buie: The 5th Circuit first states that the only reason the arrest language was in Buie was because it was a case involving an arrest; therefore the "arrest" language can be ignored in cases wherein there was no arrest. It blows past all the cases which state that a home is the place of greatest 4th Amendment protections and applies a reasonableness test derived from Buie, Terry, and Michigan v. Long. As always happens under reasonableness tests, the court then finds the officers' search reasonable because officer safety trumps all.
The court cites a number of cases which it claims support its position that protective sweeps are allowed once valid entry into the residence has been gained by an officer (I have not the time to check them but at least a couple appear to be inapposite plain view cases). Even later in the opinion it blows off the trial judge's finding that the police created any danger to themselves by entering the trailer and not picking up Gould later (ie: in the morning when he left for work). The trial court says they can't create a danger and then rely on it to abrogate constitutional guarantees. The appellate court says all the right things about how the officers cannot do such a thing and then makes an excuse for them doing it in this case.
Rule of the case:
Narrowest construction: Once the police have gained a valid constitutional entry into a part of a house, if the police have an articulable suspicion of danger they have a right to search any part of the house where a person could be and they are allowed to enter areas where they would otherwise be committing a clear constitutional violation.
Widest construction: If an officer has a reasonable suspicion that someone dangerous might be in a residence the officer can conduct a sweep of that residence.
Nightmare construction: If an officer is in an area he has a right, "as a precautionary matter and without probable cause or reasonable suspicion", to conduct a protective sweep of the adjoining areas. The court tries to allay this fear in Note 1 but, having witnessed the travesty of post-Long loss of rights by anyone driving a car, I have to wonder.
My Opinion: The trial court had it right when it pointed toward the officers placing themselves in danger and then taking advantage of it to do a protective sweep. Herein lies the difference between Buie and it's progeny and Gould. There is quite often danger in serving a warrant and thus the deference to officers acting under the color of one. However, if an officer is acting without a warrant, probable cause, or even a report of immediate criminal activity he cannot be allowed to choose an action which places him in danger over safer courses of action and be allowed to violate the constitution because of the choice. How hard could it have been to have someone watch Gould's place overnight and stop him when he came out the next day? Sure it would have been inconvenient but that's far from the primary consideration in a constitutional analysis. This is the point at which the court errs in its constitutional analysis.
However, if the officers come into a dangerous situation through a constitutionally valid activity I think that they are justified in a cursory Buie-style search if there is a reasonable articulable suspicion of danger based upon objective factors. I favor this narrowest interpretation of the case and hope that a wider interpretation (which will be pushed by prosecutors and law enforcement) is not adopted making our houses into places which police can enter and search at whim as Long and its ilk have made our cars.
Addendum: Other commentary can be found at Miami Federalist Society, TalkLeft, Criminal Appeal, and Rebuttable Presumption.
28 March 2004
Becky Dale points this article out on how one should act when pulled over by a police officer. In general it contains some good suggestions (particularly the parts about not giving the officer a statement to work with or letting him search your car) however, there are some sections which must be considered advisedly:
For goodness sake, if you suspect you are being pulled over by someone who is not an officer don't wait until you are pulled over to call 911. The window of your car is not going to stop a criminal from getting to you. Call while you are still driving.
When you are pulled over you should not do any of the tests the officer wants you to take, you should not take the street breath test, you should not even get out of your car unless the officer ORDERS you to exit the vehicle (do not get out at a request). Heck, I've known lawyers who've handed out cards telling the officer that you fully assert your rights and to arrest you or let you go. The cards came with instructions which said that if you were pulled over to get your license and registration in hand, put the card in between them, roll the window down an inch, shove them all out to the officer. This limits the evidence the officer has for probable cause to what he has witnessed while you were driving (it also absolutely ensures that you will be arrested).
Once you are at the station you must choose whether or not to take the breath test. Technically, you are required to because you drove on a street in Virginia. However, the "civil" penalty for not taking the test is loss of your license for a year. The criminal penalty, if your blood alcohol content is above a certain level or this is a 2d+ conviction within a certain number of years, is mandatory jail time or even a felony conviction. You must choose which path you prefer.
If you have a firearm or other deadly weapon in the car, tell the officer and explain where the weapon is located.As a safety matter this is probably the safest way to act and if you are going into your glove box to get your registration be certain to tell the officer if there is a gun in it. However, be aware that if a firearm is not in plain sight in the cab of the car you are likely to be charged with having a concealed weapon. Minor facts such as your inability to reach it while it was locked away in a compartment in the right side of your extended cab with no ammunition in the vehicle (much less the firearm) are of no matter. The fact that it is far more responsible to travel with the firearm locked away is no defense either. The only defense is if you have a concealed carry permit. Remember, by not telling the officer about a weapon you are exercising your right not to incriminate yourself; you are also taking a chance that some trigger happy rookie might see a barrel sticking out from under your passenger seat as you lean over to get your registration out of the glove box. Choose your actions carefully.
Women driving alone at night should be extra-cautious when a police car has flashing lights on and the officer is signaling them to pull over. A woman has every right to continue driving in a safe manner to a well-lit area, such as a convenience store lot, a gas station or a shopping center. If the officer is in an unmarked police car or in civilian clothes, the woman should ask him to summon a marked car. If he refuses, use your cell phone to call 911. Before reaching for the phone, however, explain what you are doing; otherwise the officer may think you are going for a weapon.I see this often suggested. If you choose to act in this manner realize that you will be technically guilty of eluding an officer and probably obstruction of justice. If the lighted area isn't a block or two away you can expect to draw at least one other car and to be subject to a felony stop (two angry officers treating you as they would someone they think has a a firearm and is desperate enough to use it). The article is wrong when it says you have a "right" to act in this manner; you must weigh the pros and cons yourself as to whether you are in a situation where you feel your safety demands that you act outside the law.
Turn off the ignition. Turn on the interior lights. Thereafter, keep your hands in plain view.
For goodness sake, if you suspect you are being pulled over by someone who is not an officer don't wait until you are pulled over to call 911. The window of your car is not going to stop a criminal from getting to you. Call while you are still driving.
If the officer says you are suspected of driving "under the influence" of alcohol, you should always agree to a blood, urine or breath test, even if you are innocent.ABSOLUTELY NOT!!!
When you are pulled over you should not do any of the tests the officer wants you to take, you should not take the street breath test, you should not even get out of your car unless the officer ORDERS you to exit the vehicle (do not get out at a request). Heck, I've known lawyers who've handed out cards telling the officer that you fully assert your rights and to arrest you or let you go. The cards came with instructions which said that if you were pulled over to get your license and registration in hand, put the card in between them, roll the window down an inch, shove them all out to the officer. This limits the evidence the officer has for probable cause to what he has witnessed while you were driving (it also absolutely ensures that you will be arrested).
Once you are at the station you must choose whether or not to take the breath test. Technically, you are required to because you drove on a street in Virginia. However, the "civil" penalty for not taking the test is loss of your license for a year. The criminal penalty, if your blood alcohol content is above a certain level or this is a 2d+ conviction within a certain number of years, is mandatory jail time or even a felony conviction. You must choose which path you prefer.
The peremptory challenge and race are back before the federal supreme court.
Killing three people because they oppose you marrying a fourth wife is not enough to get you the death penalty in India.
Why would a 91 year old man rob a bank?
"You want to know why I rob banks?" Rountree said. "It's fun. I feel good, awful good. I feel good for sometimes days, for sometimes hours."
Imagine this: You get let out of prison after five years. You get your life in order and start living on the straight and narrow. Then the authorities come back and say, "Oops, our bad, we released you 65 days too soon. You gotta go back."
And then the Governator steps in . . .
And then the Governator steps in . . .
Although the judge hasn't admitted it yet, the Tyco jury has hung and become acrimonious:
[Jury Note]
"Let us be very clear — this is not a hung jury based upon a lack of unanimity. This is a jury that has ceased to be able to conduct respectful, open-minded, good-faith deliberations."
A female minister gets 8 years in jail for trying to kill her lesbian lover's husband.
27 March 2004
Apparently, I am scaring Matt with my stories of the joy of practicing criminal law in Virginia. He specifically links to my last post. Hopefully, I'm not scaring too many of you away. If it's any consolation, I have yet to have the court of appeals accept one of my cases (and some of them took a lot of research and pegged clear errors). I figure somebody out there is probably reading my blawg and waiting until I file a petition with one cite from the 9th Circuit against well settled Virginia and 4th Circuit precedent. Then they'll be able to sit there and torture me for revenge.
In further comment on Matt's post, I must point out that the Virginia Constitution does not exist for those accused of crimes:
In further comment on Matt's post, I must point out that the Virginia Constitution does not exist for those accused of crimes:
"Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution." Bennefield v. Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996). See also Lowe v. Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 275 n.1 (1985) (explaining that protections under Virginia's Constitution and statutes are "substantially the same as those contained in the Fourth Amendment"); O'Mara v. Commonwealth, 33 Va. App. 525, 535 S.E.2d 175 (2000) (explaining that the protection of the right to free speech is co-extensive with federal constitutional protection). Because the rights guaranteed by the Virginia Constitution and the United States Constitution are co-extensive, we use the same analysis.The way this always comes out is that the Virginia Constitution is ignored by our courts.
Paris v. Commonwealth (2001)
Burpo v. Commonwealth [U]:
You walk into court for a sentencing hearing with a recommended sentence of 1 day to 3 months (Virginia's guidelines are only recommendations). As you stand there, with no prior warning whatsoever, the judge tells you he is going to ignore the guidelines and punish your client more severely because he exercised his right to plead not guilty. You object stating:
Yeah Right.
This is usually the most bogus of reasons used by the appellate courts to refuse to hear a case. On the odd occasion it makes sense such as when a lawyer does not raise a 19.2-270.1 objection at trial and later tries to make it his appellate argument. A hyper-technicality raised after a client is found guilty on the facts and the case is combed through for something, anything to appeal. However, in a case such as this, where the objection raises issues which we all clearly recognize a hyper-technicality is used to turn the appeal away. How is this acceptable behavior from the appellate court?
You walk into court for a sentencing hearing with a recommended sentence of 1 day to 3 months (Virginia's guidelines are only recommendations). As you stand there, with no prior warning whatsoever, the judge tells you he is going to ignore the guidelines and punish your client more severely because he exercised his right to plead not guilty. You object stating:
I have to object for the record to the Court to consider the fact that he wished and exerted his right to go to trial against him, and not considering the guidelines just because he didn't enter a guilty plea.And on appeal the Virginia Court of Appeals denies your appeal because you did not properly preserve it:
Burpo argues that the trial court violated his constitutional right to a fair trial and deprived him of his right to liberty without due process under the Fifth, Sixth, and Fourteenth Amendments. He claims these rights were violated at sentencing when the trial judge indicated that he departed from the sentencing guidelines because of Burpo's "not guilty" plea. Burpo contends that the Constitution forbids a trial court from penalizing a defendant for asserting his constitutional rights. See e.g., Griffin v. California, 380 U.S. 609, 614 (1965); Doyle v. Ohio, 426 U.S. 610 (1976).In other words, although the Defense attorney objected to violations of rights which we all know (at least since out 8th grade Civics course) are constitutionally based and guaranteed - He didn't say the magic words: 6th & 14th Amendments. As well, when surprised by a judge who was not going to follow the guidelines for an unconstitutional reason, for some reason the Defense counsel did not have all the appropriate caselaw at hand to cite in order to preserve his objection. I'm shocked! Shocked, I say! I mean, I know that I come to court each time with a file cabinet full of preprepared briefs which exactly phrase the objection as it must be and then back it up with scads of entirely on point cases.
Upon a review of the record, we find that the constitutional issue Burpo raises on appeal was not properly preserved. Rule 5A:18 states in pertinent part: No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefore at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.
The purpose of the rule is to afford the trial court an opportunity to rule intelligently on the issue presented. Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). The rule applies to all types of cases, including those with constitutional rights at issue. See Swann v. Commonwealth, 247 Va. 222, 229, 441 S.E.2d 195, 201 (1994) (consideration barred because objections not based on the constitutional grounds asserted for first time on appeal); Ashby v. Commonwealth, 33 Va. App. 540, 544-45, 535 S.E.2d 182, 185 (2000) (Rule 5A:18 barred consideration of speedy trial issues under United States and Virginia Constitutions); Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (Rule 5A:18 barred consideration of statutory argument not raised in trial court); Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438, 441 (1991) (Rule 5A:18 barred consideration of constitutional question not raised in trial court). Burpo did not raise the constitutional issue in the trial court. Furthermore, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18 to allow us to consider the constitutional issues that Burpo asserts for the first time on appeal. "In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred . . . ." Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). Without even a mention of Rule 5A:18 or ends of justice, it is obvious that there is no affirmative showing of cause for invoking the rule.
Yeah Right.
This is usually the most bogus of reasons used by the appellate courts to refuse to hear a case. On the odd occasion it makes sense such as when a lawyer does not raise a 19.2-270.1 objection at trial and later tries to make it his appellate argument. A hyper-technicality raised after a client is found guilty on the facts and the case is combed through for something, anything to appeal. However, in a case such as this, where the objection raises issues which we all clearly recognize a hyper-technicality is used to turn the appeal away. How is this acceptable behavior from the appellate court?
The Passion is having effects on our criminal world. It has caused a sinner to admit his sin (murder) and people are blaming their domestic problems upon differing interpretations of the movie. And then there's this idiot who is doing his best to yell "Fire!" in a theater (disturbing the peace)(please note: this site thinks the last story may be a fake).
If you're not already, you should be reading Statutory Construction Zone.
At least you should if you are ever going to have to interpret a statute.
At least you should if you are ever going to have to interpret a statute.
26 March 2004
When you try to bribe a prosecutor and get caught, it takes real chutzpah to ask the judge to make them give the money back.
Lv Freespace.
Lv Freespace.
A hint for car dealers: just because she is 75 does not mean she's honest.
Apparently Thailand and Australia have a "prisoner exchange treaty" for those caught transporting drugs.
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