This is not the way to solve your matrimonial problems.

found here

"One in eight British adults is being or has been stalked, with up to 45% of offenders turning violent and 40% of victims being forced to move home or job."

Hmmm . . . Is it an indication that I've been doing this kind of work too long when I'm going over evidence and I look at the amount of crack bought for the price paid and the first thought which runs through my head is that the purchaser got ripped off?

A Week in the Life of a Criminal Defense Attorney

Weekend: Technically, I'm camping. In reality, I ain't exactly roughing it. Each campsite has potable water, electricity, and there is even a central building with a shower. On Saturday I go over to W&L's law library for about a hour or so. On Sunday I go over for about five hours before I leave for the two hour drive back home. You know, it's amazing, I couldn't study worth a darn in that building when I was a student but now I get more work done when I'm out there than I do in my own office.

Monday: In the morning I print out all the paperwork I typed into my computer and mail it out. I go to the local courthouse and file some more papers. In the afternoon I start to drive the 2+ hours it takes to get to a jail to see a federal client. Then the sky opens and the doggone wiper blade sticks again (see Monday here). When the rain dies down I drive over to a local Firestorm shop at a nearby mall and try to get it fixed permanently. But the only way they will fix it is if I'll leave it overnight and pay for a diagnostic test. So I drive over to the mall's Sears buy some tools and fix it myself. Needless to say by the time I was finished it was too late to get to the jail and I was sopping wet. So I turned back.

Tuesday: I go out to the most rural court from which I take court appointed cases. Client is charged with Intimidating a Witness. He went over to the house of a woman who is the primary witness in a sexual assault case wherein his cousin is charged. Her testimony was that Client asked her what was going on but when she tried to tell him he kept interrupting to ask if they could do drugs together. Finally, he goes to leave and, as he's getting into the car he makes a "smart-aleck" comment, "Don't you throw my boys in jail now." The witness kept saying, over my objections and a motion to strike, that "he got his message across." I object on the grounds that she is guesstifying about my client's intent. The judge overrules me on the grounds that it is an illumination of the victim's state of mind. Client then testifies and his testimony is not helpful at all. The prosecutor argues that the controlling factor is the victim's subjective state of mind. I point out that, even in the "victim's" version of the events, there is no physical threat and not even a contingent verbal threat - there is not enough objective evidence for guilt beyond a reasonable doubt. There's just a smart-aleck comment made as he's getting in his car (at one point I almost called my client a smart-@ss but I caught it just in time to switch to smart-aleck). The judge starts to rule and she's adopting the prosecutor's argument. I point out that if the subjective state of mind of the victim is the standard my client could have said, "The sky is blue" and get convicted. The judge gives me a strange look and then proceeds to tell my client that the only person in the court who believes he's not guilty is his defense attorney. Then she finds him guilty but only gives him a small fine and some community service. As much as I'd like to appeal just to argue the legal point, I really can't argue with my client when he decides not to.

As soon as I get out of court I take off through the back roads of Virginia going off to see the federal client whom I had wasted a trip to see a couple weeks previously because his family had hired another attorney (see Wednesday here). A family member had called a couple days previously and told me they had not hired a lawyer and Client wants to know what's going on. So I trundle on out to the 2 hours distant jail again. And - you guessed it - I am again met by the assertion that his family has hired someone else. Client is polite but confused as to why I'm there. We talk for a little while and then I leave to drive back across the 2 hours of pavement. I try calling his family but nobody calls me back.

Wednesday: In the morning one of my clients is released from jail so she can go into a pre-trial program which will help her deal with her mental and drug abuse issues. In the afternoon my client pleads guilty to trespassing (he got caught with his teenage girlfriend, mid-act, in her house after the parents banished him). He gets all suspended time. Of course he spent two months in jail before hand because he couldn't make bond.

Thursday: In the afternoon I go to court and my client pleads guilty to eluding an officer. He drove off after the drug taskforce officer pulled his car over. The taskforce officer must not have been standing too close to the car because the usual bogus attempted capital murder charge wasn't even filed. After this hearing concludes I go over to Juvenile and Domestic Court for a hearing on the termination of parental custody of a 15 year old girl; I represent the father. When I was appointed to this case it was because they did not know where the father was and I was supposed to sit in court and make the pro forma objections while the Court did what Social Services reccomended. Well, I found out where father was living so the court subpoenaed him to come to the last two hearings (I think I was in court for 5 hearings in this matter). Father has not come by my office to talk to me about what's going on and on this date he just lets the Commonwealth take his child without a fight. I might as well have not bothered to locate him. After it's all done I just leave the court without bothering to put in for the $112 the Court is supposed to pay me for representing him.

Friday: I go to court for a preliminary hearing on a "barely adult" who is accused of getting into a fight with a teacher at a juvenile detention center. It's a felony and the prosecutor isn't willing to cut any deals so we put on the hearing. At the end I move to dismiss on some technical grounds and the only thing the judge says is "Certified." After my case another attorney gets up with the same sort of case and plagiarizes my motion almost word for word but he doesn't have any luck with it either.

Thus ends the week.

Public Defender Dude describes a client jumping off a bridge and - per the norm - pointing the finger of blame at his lawyer the whole way down. Unfortunately, I think we've all been down this path more times than we care to remember.

While I too get the "a guy in my pod has exactly the same charges and his deal is much better" spiel, my situation is a little different from PDD's in that many of my problems are caused by the fact that in fairly close proximity I have run-down cities, where if it ain't violent or it doesn't include a large amount of drugs prosecutors and police just don't want to bother with it; suburbs, where the police and prosecution are so active that pretext stops and felony convictions based upon drug residue are the norm; and rural areas where the law doesn't look for trouble but reacts sternly to anything which comes its way (because Virginia's counties are small you could travel a hour and go through all three types of jurisdictions). I hear almost every week, "If this were in the City my attorney would have me out of jail already . . ." On occasion, I actually believe it - usually on minor, residue drug or marijuana cases which are being prosecuted to their fullest extent in the suburbs.

My problem is often that the Client has learned how to game the system in the City and thinks he can play the same game outside the City. I still remember the day a client told me he wanted 12 separate jury trials for 12 separate check felonies. Evidence was overwhelming against him and a jury in the suburbs would have given him a year or two (minimum) on each. Through a minor miracle, I talked him out of it and he took a single trial; the first jury hung but the second convicted him and gave him 4 years which was approximately what the sentencing guidelines would have been with a judge sentencing. What was he thinking? Although he never actually said it, the thought process is that docket in the City is overfull and the threat of 12 different trials is meant to bring the prosecutor to the table with a good deal (Client was a jailhouse lawyer too and that is so much fun to deal with). Things get even worse as you go out to the rural counties where the docket is even less clogged and the prosecutor has no real reason to make deals with you at all. Most of the time in those counties it's take the deal or go to trial and the "deal" is often a bare guilty plea. Heck, I've even heard a judge in a rural county tell another lawyer, "Mr. Smith, remember, it is the policy of this court that all 'not guilty' pleas in drug distribution cases go to jury trials" (understand that a jury cannot suspend all or part of the 5 year minimum when it sentences while a judge can if he sentences). Trying to bluff a prosecutor down in that sort of atmosphere or dicker with him when there is nothing new to offer from your side just ain't gonna work.

Oh well, I'm off to another fun-filled day.

The Georgia Supreme Court rules that if two statutes overlap the prosecution is bound to follow the most recent, even if it has a lesser punishment:

Chief Justice Norman S. Fletcher wrote for the majority that there was "a clear legislative intent" that crimes like Mr. Dixon's be prosecuted as misdemeanor statutory rape, and that prosecutors not be able to choose among molestation laws. And since the statutory rape law overlapped with the molestation law, he wrote, Mr. Dixon was entitled to be prosecuted under it alone because it was more recent, more specific and carried a lesser sentence. He urged the Legislature to clarify the law.

Proof that the feds can convict anyone of anything: endorsing another person's e-mail is enough to get you convicted of 3 federal obstruction offenses.

As Virginia is putting in legislation to build more prisons, the costs of imprisoning everyone under the sun is making others back away from all the massive penalties.

Massachusetts' governor is trying to bring back the death penalty. In order to make it palatable to the citizens of his State he has put a commission together which recommends a number of safeguards:

[R]aising the bar for a death penalty sentence from the normal legal standard of guilt "beyond a reasonable doubt" to a finding of "no doubt about the defendant's guilt."

[A] defendant in a capital case be given the option of facing two separate juries: one for trial and, if convicted, a second for sentencing . . . to avoid the contradiction that can arise when a defendant contests his guilt in the first phase of the trial, but in the sentencing phase, in order to get the lightest sentence possible, admits guilt and claims to be remorseful.

[T]he death penalty be applied only to a narrow list of cases and that each case include scientific evidence, like DNA, fingerprints or footprints.

The death penalty would be sought only in the "worst of the worst" murders: torture murders, political terrorism murders, murders of police officers or others in the criminal justice system, and murders of multiple victims.

[P]hysical evidence required would have to "strongly corroborate the defendant's guilt," connecting the defendant either to "the crime scene, the murder weapon or the victim's body."

An independent board would review the scientific evidence.

[T]he judge would be required to give the jury special warnings that nonscientific evidence, like testimony and witness identification, can be unreliable.

[C]ourts get broad authority to set aside wrongful death sentences.

[T]he state attorney general review every decision by a district attorney to bring a capital case.

[A] separate review board investigate claims of errors in death penalty cases.

Could anybody get convicted if all that was incorporated into the law?

Police in England and Wales are not happy. They are going to have to serve on juries. Or at least they are going to have to sit there until any Defense attorney and unbiased judge strike them for cause.

Still, I guess they could be stuck on a civil jury. Actually, I'm not even sure if the judicial system over there has civil juries. Anybody out there know?

We've seen everything else justified because of the need to fight terrorism. Why not justify discrimination under the rubric of terrorism as well?

"A man who testified against a fellow inmate and murder suspect was found strangled in his six-man cell, despite a special protective order that should have earned him a one-person cell."

Even worse, they suspect that the guy was killed by the person whom he testified against - who, for obvious reasons, shouldn't have been able to get anywhere near him.

The Attorney General of California chooses not to try a further appeal after the 9th Circuit rules that a "three strikes" punishment is unconstitutionally cruel and unusual.

Wow. A city attorney threatening a police officer with the possibility of prosecution should the officer testify truthfully about a memo she wrote. "Stansberry's memo -- in which she detailed an alleged threat by Fagan Jr. to kill Smith [who is suing the city] as the suspect was handcuffed -- did not result in any discipline for the son of then-Assistant Chief Alex Fagan Sr."

A judge is overturned because he pressured a Defendant to accept a plea bargain:

Brown’s “histrionic monologues” warning of the consequences of going to trial, not only for the defendant but for the victims, “were not the stuff of mediation or facilitation,” [the appellate judge] explained. “They were the stuff of advocacy.”

Hmmm . . . most judges I know would have just let the guy go to trial. Of course, in Virginia our juries sentence and they usually come in much, much highr than the judge in this kind of case.

Agitating for more intense punishment for "hate crimes." Apparently, in Iowa they have been used more as a bargaining chip than as an actual primary charge.

A judge caught on tape taking bribes.

20 years later a judge throws out molestation charges when the "victims" testify that the police hounded them into making up stories.

This is how a guy ended up on death row:

Officials learned that an anonymous tip pointing police to Summerlin came from his wife, who said she had a psychic premonition. One of Summerlin's own lawyers admitted to an illicit "romantic encounter" with the prosecutor in the case that may have scuttled an ongoing plea agreement that was eventually dropped.

Additionally, the judge in the case lost his job after admitting to marijuana addiction and conviction.

Still, the only reason he is before the Federal Supreme Court is to decide whether Ring is retroactive.

Old Post that Blogger Says Violated Guidelines

Housekeeping:

If posting gets a little light here over the next week or so it's because I'm in the middle of trying to put together a business web page.

If you are a bit of a masochist you can take a look as it develops here.

3 biggest referrers: Recently, I was noted by Law.com which led to the single greatest number of visits at this site to date. A short while back The Volokh Conspiracy was kind enough to direct people here and it caused slightly fewer visits than Law.com did. The third greatest was sometime last year when Instapundit linked here for a matter which wasn't really criminal in nature.

Hits are up and daily feedback has risen to the point that I am rarely able to reply to the e-mails (sorry folks). Usually, if the comments are good I try to add them into the blawg so readers can see the other people's points of view.

I have recently been linked by Kemplog, Dummocrats.com, German American Law Journal :: American Edition, testpattern, Ryan's Vice Squad Tribute Page, and Crazed Law Student. Amanda, over at Crescat Sententia, was also kind enough to add my link and send me a gracious note via e-mail (thanks).

blog.josh/today was kind enough to note my page in passing here.

Requiem for a Classmate:

My rommate from law school is leaving his job working for the State in Georgia to take a job at Troutman Sanders. Thus, he gives hope for those of us who did not graduate in the top 1% of our class. I wonder if they need a criminal defense lawyer.


On a personal note: Brandon, this is what the Sun looks like; bookmark this page. You probably haven't forgotten it yet but after a few months you'll need to refer back to this page.

Somebody attacked Justice Souter (in case somebody out there has head his head in the sand all day long) but law enforcement is being close-mouthed about what actually happened. About all that is being said is that he was not robbed, he was merely attacked while jogging, and he went to the hospital with minor injuries. Something's missing.

Waddling Thunder asks if I think the attackers might get prosecuted under USC 18-111.

Section 111. Assaulting, resisting, or impeding certain officers or employees

(a) In General. - Whoever -
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties;
. . .
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than three years, or both.
(b) Enhanced Penalty. - Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon including a weapon intended to cause death or danger but that fails to do so by reason of a defective component or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.

Well, let me say that as a textualist and a believer in the rule of lenity, there's no way that I think a man out jogging is "engaged in" his "official [judicial] duties." However, when interpreting similar assault and battery statutes in Virginia judges have ruled consistently against me and held that this is a question for the finder of fact.

Personally, I think that charging this in the local D.C. courts would probably put the accused in more jeopardy. As I read this statute, if you beat someone up for any reason other than the pure joy of it you are in jeopardy for up to five years in prison rather than the one year under the federal statute.

Addendum: An Old Friend writes: "Don't read the "on account of" out of the statute; your interpretation of the statute would almost let anyone be free of prosecution under the statute so long as the judge wasn't on the bench or in chambers at the time of the assault or threat. If Souter was just a random victim, fine. But if the guys who beat him up were yelling "Free Padilla!" (or "Keep Padilla in the brig!") while they did so, it seems that 111 would apply."

No doubt. I didn't address the "on account of" language because there was no indication anything like the above occurred and, perhaps more importantly, because I really have a harder time picturing your average street thug type trying to shake down a Supreme Court Justice to influence appellate court decisions. Of course, that could just be a combination of assumptions and naivete on my part.

If you steal money from a bank take the dye-pack out before you try to deposit at your bank.

If you try to use somebody else's ID to get out of a traffic ticket you had best make sure they aren't wanted for attempted murder.

"The notion of a nation where ex-offenders who have served their sentences can go on to productive lives has taken a beating since the states embraced punitive policies barring convicted felons from scores of jobs and professions, regardless of whether their crimes have any bearing on the work. These policies confine ex-offenders to society's margins, making it likely that they will return to the prisons, which are already filled with recidivists."

Yep, and as it becomes more and more acceptable to convict larger and larger percentages of our population for lesser and lesser offenses this shall become an ever greater problem.

NY, NY is proselytizing its form of police enforcement.

Shooting in the woods without a backstop, while there are people fishing in the river down range, is not only dumb - it's a crime.

A Week in the Life of a Criminal Defense Attorney

Sunday: About 11:00 I roll into the office to get a jump on a brief in opposition to a prosecution's request for appeal. It is the 12th day after the prosecution filed so I have 9 days to get it done. I spend the day researching and writing at a leisurely pace with the TV on. Then about 5 pm I am reading through the requirements a prosecutor must fulfill to file an appeal and I find buried in them a requirement that I file in 14 days. Gulp! The TV goes off and I order in pizza cuz I'm gonna be there a while. Sometime after 12:30 I finish the draft. Then I spend the next hour or so getting the index of cases and table of contents together. After I finish it off I read it over and it is adequate; of course, by that time of night I would have probably thought that The Jabberwocky was a brilliant bit of analytical work. I e-mail it off to a service which will check my format, dot the i's and cross the t's. Then I go home to bed.

Monday: In the morning, I go watch my federal client being interviewed by the federal probation officer. The best image I can think of to characterize it is that of two scorpions circling each other while going out of their way to remain friendly. The high point of the interview was when the probation officer asked my client why he hadn't stopped dealing after a first conviction and he looked around at me and then probation officer and said, "Then we'd all be out of a job."

In the afternoon I go to the courthouse so that the "paid lawyer " can substitute into the case he'd been hired into on Friday. I meet the guy outside the courtroom and almost immediately have to pull him away from one of the other lawyers who is trying to subtly pump him for information. When court begins the paid attorney and I approach and the motion for substitution is made. The judge looks skeptical and calls the Defendant forward to ask him who his attorney is. The judge has to ask the Defendant twice before he points to the other attorney. Meanwhile, the prosecutor, surveying all the witnesses and the lawyers, says in my right ear, "So, you got out of this mess, did you?" I sit back and watch the prelim and the paid lawyer does a good job. All the charges except two are dropped. Of course, that's exactly what I told the family would happen but I'm sure they felt better spending a few thousand to get the same result.

Tuesday: The morning is pretty standard. A client's possession of marijuana is changed to possession of paraphernalia and he walks out of court with some suspended time. In the afternoon I have a preliminary hearing. My kid is one of three who went to a house tied a lady up and stole stuff out of the house. My client stayed in the car the whole time. Later on all three confessed to the whole thing. One of the others has a possible Miranda issue so that prelim comes to a halt. The prosecutor actually screws up and doesn't introduce the statement of the third Defendant leaving no evidence in his case so his case is dismissed (the prosecutor is going to direct indict). However, the prosecutor does introduce my client's confession made immediately after the detective reads Client his Miranda rights and has him sign a paper stating he understands his rights, all on the video tape. So my client's case got certified to the grand jury. Then I spent the better part of a hour trying to explain to his immigrant parents what happened through my client's sister who is the only person there who actually speaks English and the mother-tongue. Try explaining to people who don't understand English or the court system how one Defendant is getting out of jail today while their son is staying in jail and try doing it through your client's 15 year old sister. Fun.

Wednesday: I come to court in the afternoon for a client who is charged with felony unauthorized use of his girlfriend's car, misdemeanor reckless driving, and felony hit and run. The unauthorized use is getting dropped. I try to get the prosecutor to drop the reckless driving because the client is probably going to get slammed in the Circuit Court on the hit and run (the facts are really, really bad). But the prosecutor just isn't buying it. I finally ask the clerk to call the case and when she does the prosecutor's witness has disappeared. Knowing that the prosecutor can get a continuance, I once again run the idea of him dropping the reckless and my client waiving on the hit and run so that it will go to the grand jury. This time he bites. We explain the deal to the judge and he starts filling out the paperwork reflecting it. Just then the witness comes hustling in. He had been in the restroom. The judge asks the prosecutor if this changes how he wants to deal with the reckless driving and the prosecutor tells him that he wants to withdraw his motion to dismiss. The judge tells me, "Well, Mr. Lammers, I think I have to do it." So my client pleads no contest to the reckless and the judge hears the evidence and it is bad. The judge finds Client guilty and I tell him before sentencing that we are going to appeal so that there is one sentencing event. "Well, you can if you want Mr. Lammers." Then all he does is give my client a fine. Needless to say, we did not appeal.

Thursday: In the morning I go off to a rural court. When I get up to argue my client's case I start out by saying "Your Honor, as you know from reading the memorandum in support of the motion to dismiss . . ." At this point, the judge tells me he hasn't read it. So I basically have to make the entire, rather convoluted, jurisdictional argument orally. At the end the judge looks up and says, "Mr. Lammers you're going to make me have to do some work." Then he tells me after he researches the matter he will issue a written opinion. As soon as the hearing is over I sprint to my car and zoom down the road to get to another courthouse. I get there 55 minutes after the docket began, which is usually plenty of time - but not on this day. The judge had some sort of meeting he had to get to so he had continued my case 5 minutes before I got to court. The judge and prosecutor were still there so we could have done the 10 minute guilty plea but my client had bolted from the courthouse the second after the case was continued.

Friday: I go to court in the morning for a client's show cause as to why he shouldn't get 30 days in jail for not having gone to VASAP after being convicted of a DUI. I explain to the judge that he thought that as long as he didn't get a restricted license he didn't have to go to VASAP but she sends Client to jail for 10 days anyway. A lot of clients make this mistake because the law used to let people not go to VASAP as long as they were willing not to drive while their licenses were revoked (you have to go to VASAP to get a restricted license). Now you must go but there's always a couple buddies out there who got DUI's 5 or 6 years ago who tell the client, "Naw, you don't have to go. All you have to do is wait a year and get your license back." And the client believes them.

As a side note, while I am sitting in court waiting for my client's case to be called the judge starts to sentence someone with a DUI conviction to 12 months jail time suspended for 12 months. The prosecutor stops her and points to me and asks the judge to make the suspended sentence 3 years so that the jurisdictional argument which I made on Thursday cannot be made again. He tells her he's going to call this Lammers' Rule. I've finally made my mark on the world; I can now die a happy man. :-)

Even in Germany it is not illegal to laugh.