Got back to Virginia late Monday night and meant to blog yesterday but after court and time spent running around tying up loose ends from the trip it was after 8 p.m. So I went back to my apartment and sat down on my couch to watch some TV. Next thing I know I'm waking up at 5 a.m.
Anyway, I'm back and will start posting again today. I'm not going to turn off the access for those folks I asked to fill in for me so they can continue to drop in if they want but I imagine they will concentrate more on their fine blogs.
Anyway, it's good to be back!
06 October 2004
05 October 2004
Booker/Fanfan - the Experts Weigh In
Tommy Goldstein comments on Booker/Fanfan here and here.
Professor Douglas Berman discusses the oral argument here, here, here, and here (collecting commentary)
Mark Stancil, who clerked for WHR and now works for Baker Botts, publishes a newsletter on Supreme Court cases. You can subscribe to it by emailing him: mark [dot] stancil [ at ] bakerbotts [ dot ] com. Anyhow, here is what Mr. Stancil had to say about Booker and Fanfan.
If you feel left out, don't. Email me and I'll link to your summary.
Professor Douglas Berman discusses the oral argument here, here, here, and here (collecting commentary)
Mark Stancil, who clerked for WHR and now works for Baker Botts, publishes a newsletter on Supreme Court cases. You can subscribe to it by emailing him: mark [dot] stancil [ at ] bakerbotts [ dot ] com. Anyhow, here is what Mr. Stancil had to say about Booker and Fanfan.
In other news, the Court heard nearly two hours of oral argument today in United States v. Booker (04-104) and United States v. Fanfan (04-105), which ask whether Blakely v. Washington applies to the Federal Sentencing Guidelines, and, if so, whether the constitutionally offensive portions of Guidelines regime are severable. Not surprisingly, the five-Justice Blakely/Apprendi majority looked rock solid. Even voters in Palm Beach County read Blakely as effectively announcing the Guidelines' demise, and it seemed perfectly clear the majority plans to make good on the threat. By far the stickier wicket was whether some semblance of the Guidelines remained intact, either through jury factfinding or by making the Guidelines merely advisory. I didn't see a consensus forming around any one option here-Justices Scalia, Stevens, and Souter seemed to entertain the notion that the Guidelines could be kept in place if juries made the numerous necessary factual determinations (presumably through special verdict forms and/or separate sentencing proceedings). The Chief, O'Connor, and perhaps Kennedy seemed strongly against such a proposal, hinting that they did not plan to help clean up Apprendi's mess. I'm not at all sure where Ginsburg and Breyer will line up, and Justice Thomas was his usual vocal self. Bottom-line prediction: Guidelines with judicial factfinding are dead, and it's unlikely there will be five votes for imposing jury factfinding. In any event, it's probably safe to assume the Chief will rush these opinions out the door-perhaps as soon as November 8 or 9.
If you feel left out, don't. Email me and I'll link to your summary.
04 October 2004
How do the Federal Sentencing Guidelines Work?
I get asked that a lot. CNN has provided a very nice interactive detailing how the FSG's work.
I add that judges find sentencing factors by only a preponderance of the evidence; hearsay is allowed at sentencing; and the defendant has very limited cross-examination "rights."
Generally, a probabation officer files a pre-sentencing report that serves as the basis for the sentence. PO will come to defense lawyer's office to interview client. PO will then state what Guidelines she thinks applies. USA's and defense lawyers will fight with each other over what section of the USSG applies - faxing obnoxious memos back and forth to each other. Then judge usually accepts the PO's factual findings (which are not subjected to X-E), and listens to lawyers give reasons why some section does or does not apply.
Sentencing arguments must more closely resemble civil law countries' system of law. You do not (generally) have an argument, unless you can cite it in the code.
I add that judges find sentencing factors by only a preponderance of the evidence; hearsay is allowed at sentencing; and the defendant has very limited cross-examination "rights."
Generally, a probabation officer files a pre-sentencing report that serves as the basis for the sentence. PO will come to defense lawyer's office to interview client. PO will then state what Guidelines she thinks applies. USA's and defense lawyers will fight with each other over what section of the USSG applies - faxing obnoxious memos back and forth to each other. Then judge usually accepts the PO's factual findings (which are not subjected to X-E), and listens to lawyers give reasons why some section does or does not apply.
Sentencing arguments must more closely resemble civil law countries' system of law. You do not (generally) have an argument, unless you can cite it in the code.
Around the Web - Again
Ex-Alabama governor on trial for fraud
Federalist No. 84 (that's me) has a summary of crime and federalism victories post Lopez/Morrison/Jones.
Innocence as industry.
Jason Hernadez offers some final thoughts on Booker and Fanfan.
A Supreme Court quiz (Via Orin Kerr)
Ken'll be back from vacation tonight or tomorrow. If you've enjoyed having me here,please stop by and visit me.
Federalist No. 84 (that's me) has a summary of crime and federalism victories post Lopez/Morrison/Jones.
Innocence as industry.
Jason Hernadez offers some final thoughts on Booker and Fanfan.
A Supreme Court quiz (Via Orin Kerr)
Ken'll be back from vacation tonight or tomorrow. If you've enjoyed having me here,please stop by and visit me.
Commerce Clause Fever
Milbarge - brilliant legal mind and all around cool guy - joins the discussion on the Commerce Clause and Maxwell.
Wishing T. Christopher Kelly and Rosemary Scapicchio the Best at Today's Booker & Fanfan Oral Argument and "S.Ct. v. Congress on Federal Sentencing"
Today our best wishes go to attorneys T. Christopher Kelly, of Madison, Wis., who will argue on behalf of respondent Booker, and to Rosemary Scapicchio, Boston, Mass., who will argue for respondent Fanfan. There will be 2 hours of argument. Each of them will have a ½ hour, and Acting Solicitor General Paul Clement will have the other hour.
Professor Berman indicates at Sentencing Law & Policy that he finds it "a bit of news [that Acting Solicitor General Clement will be arguing both cases] because Deputy Solicitor General Michael Dreeben is reputed to be the 'point person' on these cases, and he argued on behalf of the United States as amici in Blakely." I think they are probably trying to avoid having the same attorney now telling the Justices that the differences between the Washington State sentencing guidelines and the federal sentencing guidelines are all of a sudden of Constitutional significance. It should be interesting to see how much time the Court actually devotes to questions addressing the applicability of Blakely to the federal sentencing guidelines as compared to the more complex issue of severability.
I believe the respondents briefs are excellent, as are those of many of the amici filing in their support. Never having done it, I can only assume that arguing any case, let alone one of the importance of these consolidated ones, before the Supreme Court would give an attorney some butterflies, so we wish T. Chris Kelly and Rosemary Scapicchio the best of luck.
It is unfortunate that we will not be able to listen to the argument, and I only hope that a transcript does not take long to be posted somewhere. Jason Hernández over at Blakely Blog will be attending, as will Professor Douglas Berman from Sentencing Law & Policy. Jason expects to have something up at Blakely Blog by about 4 p.m.
We predict that the Court's Blakely majority will hold together and apply Blakely to the federal sentencing guidelines. We have no idea what the Court will do as to the issue of severability. But it appears to us that whatever the Court does on severability, the next move will be in Congress. We think that this post at Sentencing Law & Policy which quotes a set of "DC Observations" from Baylor Law Professor Mark Osler is a worthy but depressing read as to the Congressional mindset. But perhaps the last word will not be more mandatory minimums as many think is the likely Congressional reaction. Professor Berman has a very encouraging post in which indicates that
Professor Berman indicates at Sentencing Law & Policy that he finds it "a bit of news [that Acting Solicitor General Clement will be arguing both cases] because Deputy Solicitor General Michael Dreeben is reputed to be the 'point person' on these cases, and he argued on behalf of the United States as amici in Blakely." I think they are probably trying to avoid having the same attorney now telling the Justices that the differences between the Washington State sentencing guidelines and the federal sentencing guidelines are all of a sudden of Constitutional significance. It should be interesting to see how much time the Court actually devotes to questions addressing the applicability of Blakely to the federal sentencing guidelines as compared to the more complex issue of severability.
I believe the respondents briefs are excellent, as are those of many of the amici filing in their support. Never having done it, I can only assume that arguing any case, let alone one of the importance of these consolidated ones, before the Supreme Court would give an attorney some butterflies, so we wish T. Chris Kelly and Rosemary Scapicchio the best of luck.
It is unfortunate that we will not be able to listen to the argument, and I only hope that a transcript does not take long to be posted somewhere. Jason Hernández over at Blakely Blog will be attending, as will Professor Douglas Berman from Sentencing Law & Policy. Jason expects to have something up at Blakely Blog by about 4 p.m.
We predict that the Court's Blakely majority will hold together and apply Blakely to the federal sentencing guidelines. We have no idea what the Court will do as to the issue of severability. But it appears to us that whatever the Court does on severability, the next move will be in Congress. We think that this post at Sentencing Law & Policy which quotes a set of "DC Observations" from Baylor Law Professor Mark Osler is a worthy but depressing read as to the Congressional mindset. But perhaps the last word will not be more mandatory minimums as many think is the likely Congressional reaction. Professor Berman has a very encouraging post in which indicates that
Though everyone seems to assume mandatory minimum sentencing is immune from the Apprendi/Blakely rule due to the High Court's decision in Harris, Justice Breyer expressed great reservations about his vote in that case. If Congress passes an array of mandatories after Booker and Fanfan, serious reconsideration of Harris might come sooner rather than later.He goes on to mention the Angelos case now pending before District Judge Paul Cassell in Utah., of Croxford fame. Check out those two posts at SL&P.
03 October 2004
First Monday
Hi, sorry I'm late. I'm here for the position of guest blogger...
Doesn't this sort of feel like when Regis was auditioning people for Kathy Lee's role? No? Ok then, nevermind.
"First Monday" will soon be upon us, so, I thought that would be a good timely topic. On the first Monday of October, the Supreme Court begins its new term. In the first few weeks, the court will hear some good cases relevant to criminal law. First, there will be a review, and quite possibly an overhaul, of the federal sentencing guidelines (a follow-up to the Court's decision in Blakely). Second, the constitutionality of the death penalty as it is applied to defendants who were juveniles at the time of the commission of the crime will be reviewed. Also in the next few weeks, is the question of whether states can racially segregate prison inmates, and whether to limit the use of drug-sniffing dogs in routine traffic stops.
See, I tried to cover real law like Lammers would (as opposed to war stories and jokes mixed in with a tiny bit of criminal law, which is what I do over at Blonde Justice.) Considering I hate the "reading and writing" aspect of law, I'd say I did alright. And I stuck to law stuff, except for that part about Regis.
Also, I just noticed that CrimLaw is missing a link to one of my favorite new criminal law blogs, so I've got to point everyone toward Not Guilty. (You can also get to Not Guilty via my own blog, Blonde Justice.) Did I meantion I have a blog called Blonde Justice?
Doesn't this sort of feel like when Regis was auditioning people for Kathy Lee's role? No? Ok then, nevermind.
"First Monday" will soon be upon us, so, I thought that would be a good timely topic. On the first Monday of October, the Supreme Court begins its new term. In the first few weeks, the court will hear some good cases relevant to criminal law. First, there will be a review, and quite possibly an overhaul, of the federal sentencing guidelines (a follow-up to the Court's decision in Blakely). Second, the constitutionality of the death penalty as it is applied to defendants who were juveniles at the time of the commission of the crime will be reviewed. Also in the next few weeks, is the question of whether states can racially segregate prison inmates, and whether to limit the use of drug-sniffing dogs in routine traffic stops.
See, I tried to cover real law like Lammers would (as opposed to war stories and jokes mixed in with a tiny bit of criminal law, which is what I do over at Blonde Justice.) Considering I hate the "reading and writing" aspect of law, I'd say I did alright. And I stuck to law stuff, except for that part about Regis.
Also, I just noticed that CrimLaw is missing a link to one of my favorite new criminal law blogs, so I've got to point everyone toward Not Guilty. (You can also get to Not Guilty via my own blog, Blonde Justice.) Did I meantion I have a blog called Blonde Justice?
02 October 2004
Around the web
The Bush Administration is making room for some new Fedearlist Society blood.
Store clerk cum criminal defendant cum victorious plaintiff.
I'm a PD has a new post.
Prosecutors can do no wrong.
Here's a judge who is not likely to remain on the bench.
CopTalk reminds us to never say never.
Store clerk cum criminal defendant cum victorious plaintiff.
I'm a PD has a new post.
Prosecutors can do no wrong.
Here's a judge who is not likely to remain on the bench.
CopTalk reminds us to never say never.
Major Commerce Clause Case
The Eleventh Circuit Court of Appeals handed down a major Commerce Clause case today. In United States v. Maxwell, No. 03-14326, (11th Cir., Oct. 1, 2004) a unanimous three-judge panel held that Congress could not criminalize the intrastate, non-commercial, possession of child pornography.
Maxwell lived in Florida. At his apartment he kept child pornography on computer disks. However, the prosecution could not prove that the pictures of the children contained on the disks were taken outside of Florida. The prosecution sought to prove an interstate nexus by arguing that the disks moving through interstate commerce was a sufficient tie to hold Maxwell liable. The Eleventh Circuit disagreed. Most significant about the decision is this line: "We believe [the Wickard v. Filburn] aggregat[ion] approach cannot be applied to intrastate criminal activity of a noneconomic nature." Slip opinion at 37.
This is reasoning we hope SCOTUS will adopt in Ashcroft v. Raich, where the question presented is whether Congress may regulate the wholly intrastate, non-commercial cultivation of medicial marijuana. Let's hope that the Supreme Court will heed the Eleventh Circuit's wisdom and return our federal government of enumerated powers.
I digest Maxwell here.
Maxwell lived in Florida. At his apartment he kept child pornography on computer disks. However, the prosecution could not prove that the pictures of the children contained on the disks were taken outside of Florida. The prosecution sought to prove an interstate nexus by arguing that the disks moving through interstate commerce was a sufficient tie to hold Maxwell liable. The Eleventh Circuit disagreed. Most significant about the decision is this line: "We believe [the Wickard v. Filburn] aggregat[ion] approach cannot be applied to intrastate criminal activity of a noneconomic nature." Slip opinion at 37.
This is reasoning we hope SCOTUS will adopt in Ashcroft v. Raich, where the question presented is whether Congress may regulate the wholly intrastate, non-commercial cultivation of medicial marijuana. Let's hope that the Supreme Court will heed the Eleventh Circuit's wisdom and return our federal government of enumerated powers.
I digest Maxwell here.
30 September 2004
While the Cat's Away . . .
All the way from Macondo Law to Virginia, by invitation, but it wasn't just a come and blog while I'm away invitation --at least not in my case. I was instructed to just blog on legal stuff, and leave polictics out. So, given those conditions, I will not comment about tonight's little gathering at the University of Miami, or any similar stuff.
Since Ken was so nice to invite me to keep this thing running while he's having a good time in Kentucky, maybe I should refer some clients to him in reciprocity. They may not be in Virginia, but I already know he gets around, so what the heck.
Two ladies contacted me (they're still on the run) after they had a small problem at a supermarket with a clerk who would not retrieve jugs of lemonade and iced tea for one of them. Dumb Clerk! Once Ken gets back home, he should rush to Harrisburg, PA. (Ken, if you are still in that lonely courthouse library in Kentucky, give me a call so I can refer this lady to you).
And this case will take you to Oklahoma, assuming the police decide to charge the guy. If they pass the case to the feds I think he could be charged with one of those terrorist offenses, or conspiracy to terrorize. But he's got a good defense: Just wanted to show my wife I was a hero!
And then there's this other case in Ark. of a guy whose wife definitely does not think of him as a hero. Damn those hot pants!
I think 3 cases for a blogging invite is more than fair pay. Oh! Ken, either you're on vacation or you're not. Get out of that courthouse in Kentucky!
Since Ken was so nice to invite me to keep this thing running while he's having a good time in Kentucky, maybe I should refer some clients to him in reciprocity. They may not be in Virginia, but I already know he gets around, so what the heck.
Two ladies contacted me (they're still on the run) after they had a small problem at a supermarket with a clerk who would not retrieve jugs of lemonade and iced tea for one of them. Dumb Clerk! Once Ken gets back home, he should rush to Harrisburg, PA. (Ken, if you are still in that lonely courthouse library in Kentucky, give me a call so I can refer this lady to you).
And this case will take you to Oklahoma, assuming the police decide to charge the guy. If they pass the case to the feds I think he could be charged with one of those terrorist offenses, or conspiracy to terrorize. But he's got a good defense: Just wanted to show my wife I was a hero!
And then there's this other case in Ark. of a guy whose wife definitely does not think of him as a hero. Damn those hot pants!
I think 3 cases for a blogging invite is more than fair pay. Oh! Ken, either you're on vacation or you're not. Get out of that courthouse in Kentucky!
In Kentucky - But writing About Va.
Well, I'm sitting in a law library in the Circuit Court of Fayette County Kentucky where there is apparently no trial activity at all today (never seen a courthouse so empty).
I got an e-mail from DM asking what a direct indictment is:
In Virginia there are two possible ways that you can be brought to trial.
First, you can have a warrant or summons issued against you by an officer and magistrate. Then you go to the general district court and have your trial (if a misdemeanor) or preliminary hearing (if a felony). After that you have the absolute right to appeal any misdemeanor conviction (even if you pled guilty). At a felony preliminary hearing the judge decides if there is probable cause; if there is PC the case is sent to the grand jury and on to Circuit Court for trial (grand jury indictments are an assumed).
Second, the prosecutor can take the case directly to the grand jury and get an indictment without going through any of the hassle of general district court hearings. He can also take a case to the grand jury even if the general district court judge dismissed it in the preliminary hearing. This is a direct indictment.
Most cases are handled by the first method. However, should a prosecutor wish to game the system or disagree with the general district court judge's dismissal he can use the second method.
I find this is usually used when there is some mistake during the prelim and the prosecutor doesn't have needed witnesses or botches some necessary element of the crime. Sometimes it is done because the prosecutor thinks he will get a friendlier judge in the circuit court. The worst is when it is done to hide weaknesses in a case. Virginia is a very, very limited discovery State. While not true across the board, some prosecutors are stingy with what evidence they will provide. Therefore, although Virginia's courts appellate say over and over again that the purpose of a prelim is not discovery that's not true and everyone in Virginia knows it. This is the place where the defense attorney gets his opportunity to actually question the officer or complaining witness and find out something about the prosecutor's case. There are times when it would be in the interest of a not-so-standup prosecutor to skip this step.
For example: Let's say a prosecutor knows that the stop and detention of the car (which yielded 20 lbs of cocaine) is pretty shakey. So he moves for a nolle prosequi (dismissal without prejudice) in general district court. The law of Virginia requires that constitutional issues be argued at least three days pretrial. If the Defense doesn't find out about the unconstitutional search pretrial he loses that issue. And, although I must admit not having researched this recently, most likely the trial court will not entertain, and the courts appellate will not overturn because of, a motion made during the trial to suppress (after all the Defendant was there - he should have told his lawyer this had happened - it's a nice theory anyway).
To be fair, I don't see this used often in the courts wherein I practice. However, you always hear horror stories about the jurisdiction over the horizon where there is all-out, no-holds-barred war and tactics such as this are common. I just don't practice in them.
I got an e-mail from DM asking what a direct indictment is:
In Virginia there are two possible ways that you can be brought to trial.
First, you can have a warrant or summons issued against you by an officer and magistrate. Then you go to the general district court and have your trial (if a misdemeanor) or preliminary hearing (if a felony). After that you have the absolute right to appeal any misdemeanor conviction (even if you pled guilty). At a felony preliminary hearing the judge decides if there is probable cause; if there is PC the case is sent to the grand jury and on to Circuit Court for trial (grand jury indictments are an assumed).
Second, the prosecutor can take the case directly to the grand jury and get an indictment without going through any of the hassle of general district court hearings. He can also take a case to the grand jury even if the general district court judge dismissed it in the preliminary hearing. This is a direct indictment.
Most cases are handled by the first method. However, should a prosecutor wish to game the system or disagree with the general district court judge's dismissal he can use the second method.
I find this is usually used when there is some mistake during the prelim and the prosecutor doesn't have needed witnesses or botches some necessary element of the crime. Sometimes it is done because the prosecutor thinks he will get a friendlier judge in the circuit court. The worst is when it is done to hide weaknesses in a case. Virginia is a very, very limited discovery State. While not true across the board, some prosecutors are stingy with what evidence they will provide. Therefore, although Virginia's courts appellate say over and over again that the purpose of a prelim is not discovery that's not true and everyone in Virginia knows it. This is the place where the defense attorney gets his opportunity to actually question the officer or complaining witness and find out something about the prosecutor's case. There are times when it would be in the interest of a not-so-standup prosecutor to skip this step.
For example: Let's say a prosecutor knows that the stop and detention of the car (which yielded 20 lbs of cocaine) is pretty shakey. So he moves for a nolle prosequi (dismissal without prejudice) in general district court. The law of Virginia requires that constitutional issues be argued at least three days pretrial. If the Defense doesn't find out about the unconstitutional search pretrial he loses that issue. And, although I must admit not having researched this recently, most likely the trial court will not entertain, and the courts appellate will not overturn because of, a motion made during the trial to suppress (after all the Defendant was there - he should have told his lawyer this had happened - it's a nice theory anyway).
To be fair, I don't see this used often in the courts wherein I practice. However, you always hear horror stories about the jurisdiction over the horizon where there is all-out, no-holds-barred war and tactics such as this are common. I just don't practice in them.
29 September 2004
Another guest, this time from out West
Skelly here, posting from a wind-swept, high desert public defenders office on the cracked rim of the Great Basin. Ken invited a few of us to crash here at Crim Law while he's out of town, but we have to be nice and pick up after ourselves before he gets back. Thank you, Ken.
My contribution seems to be to highlight the foibles and misadventures of my brother and sister p.d.'s. You know all about p.d.s failing to stress to a death penalty jury in the penalty phase that their client is mentally retarded, or simply sleeping on the job. At the moment, the most notorious (ex) public defender has to be Theresa Olson, the attorney who is in the process of having her bar license suspended for having sex with her murder client in the attorney visiting room of the jail. This week a hearing officer determined that an August 10, 2002 tryst between Olson and triple convicted murderer Glen Sebastian Burns was in fact not a "hug gone bad, but "inappropriate, intimate physical contact, including sexual relations, with her client."
Her attorney, doing the good defense attorney thing, pointed out that the hearing examiner had not specifically found that Olson had had "sexual intercourse" but merely "sexual relations" with Burns and that Olson's character and reputation as an attorney were good.
Earlier, King County Public Defender Anne Harper testified that the incident between Olson and Burns "trashed" the reputation of all public defenders. Harper said she feels strongly about the public defense system and its constitutional importance, and that the incident between Olson and Burns especially hurt the reputation of female public defenders.
I guess I come down harder on the individual p.d.'s who make all of us p.d.'s collectively look bad, than on the prosecutors or D.A.'s who play stupid human tricks on our clients. I expect better, and 99.9% of my colleagues do too.
My contribution seems to be to highlight the foibles and misadventures of my brother and sister p.d.'s. You know all about p.d.s failing to stress to a death penalty jury in the penalty phase that their client is mentally retarded, or simply sleeping on the job. At the moment, the most notorious (ex) public defender has to be Theresa Olson, the attorney who is in the process of having her bar license suspended for having sex with her murder client in the attorney visiting room of the jail. This week a hearing officer determined that an August 10, 2002 tryst between Olson and triple convicted murderer Glen Sebastian Burns was in fact not a "hug gone bad, but "inappropriate, intimate physical contact, including sexual relations, with her client."
Her attorney, doing the good defense attorney thing, pointed out that the hearing examiner had not specifically found that Olson had had "sexual intercourse" but merely "sexual relations" with Burns and that Olson's character and reputation as an attorney were good.
Earlier, King County Public Defender Anne Harper testified that the incident between Olson and Burns "trashed" the reputation of all public defenders. Harper said she feels strongly about the public defense system and its constitutional importance, and that the incident between Olson and Burns especially hurt the reputation of female public defenders.
I guess I come down harder on the individual p.d.'s who make all of us p.d.'s collectively look bad, than on the prosecutors or D.A.'s who play stupid human tricks on our clients. I expect better, and 99.9% of my colleagues do too.
Guest Blogging
Ken asked me to guest blog for him while he's on vacation. Flattered to be asked, I naturally accepted. Besides, how could I turn down the opportunity to post at the web's first criminal law blog?
This is my first time guest blogging, so I am a little nervous. I normally blog at Crime & Federalism, and I'm a bit edgier than Ken, whose more the distinguished Southern gentleman.
Anyhow, I hope you enjoy my posts. Email can be directed here.
This is my first time guest blogging, so I am a little nervous. I normally blog at Crime & Federalism, and I'm a bit edgier than Ken, whose more the distinguished Southern gentleman.
Anyhow, I hope you enjoy my posts. Email can be directed here.
Bizarro World
Kobe Bryant's defense team sought to seal the record in Colorado v. Bryant. The prosecution demurred:
I also saw that the prosecution's spokeswoman, Krista Flannigan, is still on the state's payroll. Newsflash, guys. The criminal case is over. Do the fiscally responsible thing and trim the fat. Or, was the Kobe Bryant prosecution more about the egos of a few DA's, and less about public trust and responsibility?
Related post: The cost of the Kobe Bryant prosecution.
[Mark Hurlbert] recently said evidence and documents in the case should be released, saying the public's interest in reviewing actions and decisions by prosecutors and the judge outweighed Bryant's privacy concerns.Isn't it ironic that now the defense wants to hide the record, while the prosecution moves for full disclosure? Where now are the prosecution's cries to protect the accuser's privacy?
I also saw that the prosecution's spokeswoman, Krista Flannigan, is still on the state's payroll. Newsflash, guys. The criminal case is over. Do the fiscally responsible thing and trim the fat. Or, was the Kobe Bryant prosecution more about the egos of a few DA's, and less about public trust and responsibility?
Related post: The cost of the Kobe Bryant prosecution.
Indecent Exposure
Sometimes ya just can't out do the headline: "Naked Attorney Gives New Meaning to 'Legal Exposure'"
27 September 2004
BTW ~ Kentucky
If anyone is reading this from the Lexington-Fayette County area I will probably be poking around the courts in Lexington on Thursday (if I get into town early enough) and Friday to check out what the legal system is like. Any suggestions? lammersk@yahoo.com
Vacation
Ladies and gentlemen, I leave you all so that I may go on vacation. I'm not actually leaving until after my last case Wednesday but I've got a ton of stuff to do tomorrow so I've invited a number of other practitioners with blogs to step in until I return next Tuesday. I leave you in their capable hands.
Hoo-Aa
One of my fellow 1999 graduates of Washington & Lee Law, Daniel Grubb, has grabbed life by the horns and is living an exciting post law school life, co-founding his own law firm and then going off to Afghanistan to serve the common good.
26 September 2004
Around the Web
1. He didn't try to supress the color of the officer's eyes? Slacker.
2. I respectfully dissent points to an article criticizing the felony murder rule and some of the silly laws which could cause its invocation.
3. In Green Bay they apparently don't forget about old crimes.
4. "On the other hand, we have defense lawyers, who are...um...defense lawyers." Hmmm . . . That feels a lot like saying, "on the other hand there are the Yankees, who are . . . um . . . Yankees." Everyone in the South knows what modifying adjective is missing here . . .
2. I respectfully dissent points to an article criticizing the felony murder rule and some of the silly laws which could cause its invocation.
3. In Green Bay they apparently don't forget about old crimes.
4. "On the other hand, we have defense lawyers, who are...um...defense lawyers." Hmmm . . . That feels a lot like saying, "on the other hand there are the Yankees, who are . . . um . . . Yankees." Everyone in the South knows what modifying adjective is missing here . . .
25 September 2004
Beauty Show
Go to Columbian prison - participate in a Beauty Pageant.
The story is shockingly lacking in photographic proof.
The story is shockingly lacking in photographic proof.
Burglary / Robbery
1. When you go to burgle a car it isn't very prudent to take a nap in the back seat.
2. The Japanese truly are different - A man goes looking for a policeman to admit to a failed robbery.
3. I did all the other robberies except not that one; but I'll plead guilty to it anyway since you found me with the credit card.
4. Answering the eternal question: When the police question and release you on one robbery is it a good idea to go right out and commit another one?
5. Need money so you can go to the mall? Burgle your neighbors' houses. 'Cuz, you know you'll never get caught.
6. If you're going to take advantage of the fact that the ATM isn't being filmed you should at least get in and take the money.
2. The Japanese truly are different - A man goes looking for a policeman to admit to a failed robbery.
3. I did all the other robberies except not that one; but I'll plead guilty to it anyway since you found me with the credit card.
4. Answering the eternal question: When the police question and release you on one robbery is it a good idea to go right out and commit another one?
5. Need money so you can go to the mall? Burgle your neighbors' houses. 'Cuz, you know you'll never get caught.
6. If you're going to take advantage of the fact that the ATM isn't being filmed you should at least get in and take the money.
Prostitution
1. A Korean ladt convicted in federal court for being a madame.
2. A Korean man convicted in federal court for being a pimp.
3. Maybe they're here because Korea is cracking down?
4. The U.S. military is going to start handing out a lot more court martials.
5. Ah, okay, I understand now - she became a prostitute in order to pay off her law student loans.
6. Naw, 38 "massage parlors" doesn't mean there is any brothel problem in your jurisdiction.
7. No, really? An escort service which is about prostitution?
8. California to legalize prostitution?
2. A Korean man convicted in federal court for being a pimp.
3. Maybe they're here because Korea is cracking down?
4. The U.S. military is going to start handing out a lot more court martials.
5. Ah, okay, I understand now - she became a prostitute in order to pay off her law student loans.
6. Naw, 38 "massage parlors" doesn't mean there is any brothel problem in your jurisdiction.
7. No, really? An escort service which is about prostitution?
8. California to legalize prostitution?
Marijuana
1. "A Malawian man believed to be high on marijuana beheaded two women with an axe on Friday."
2. "A Southeast Portland man who was shot and wounded Monday morning by at least two men was apparently targeted for his medical marijuana."
3. Marijuana Destroyed:
a. Tulare, California - $185,200,000 / 46,412 plants.
b. Amador, California - $500,000 / 9,449 plants / 700 pounds.
c. Palo Verde Valley, California - 163 pounds.
d. Tuolumne, California - $45,000,000 / 11,308 plants.
e. Milam, Texas - $1,000,000 / 200 pounds.
f. Malibu, California - $7,000,000 / 7,000 plants.
g. New Jersey - $26,000 / 13 plants (must not grow well in chemical dumps).
4. Growing it in a cemetery almost works.
5. Sing along with me: Blame it on Canada . . .
2. "A Southeast Portland man who was shot and wounded Monday morning by at least two men was apparently targeted for his medical marijuana."
3. Marijuana Destroyed:
a. Tulare, California - $185,200,000 / 46,412 plants.
b. Amador, California - $500,000 / 9,449 plants / 700 pounds.
c. Palo Verde Valley, California - 163 pounds.
d. Tuolumne, California - $45,000,000 / 11,308 plants.
e. Milam, Texas - $1,000,000 / 200 pounds.
f. Malibu, California - $7,000,000 / 7,000 plants.
g. New Jersey - $26,000 / 13 plants (must not grow well in chemical dumps).
4. Growing it in a cemetery almost works.
5. Sing along with me: Blame it on Canada . . .
Drugs
1. Addicted to heroin from birth.
2. Richmond - the latest councilman in court: "Syringes were relics from addiction era, ex-councilman says."
3. Grandparents, babysitting, and heroin.
4. The lesson here? Don't yell at the court clerk.
5. Using meth to stay awake at work.
6. Older addicts.
7. Government plans to let more doctors prescribe pure heroin were abandoned.
2. Richmond - the latest councilman in court: "Syringes were relics from addiction era, ex-councilman says."
3. Grandparents, babysitting, and heroin.
4. The lesson here? Don't yell at the court clerk.
5. Using meth to stay awake at work.
6. Older addicts.
7. Government plans to let more doctors prescribe pure heroin were abandoned.
Crime Trends
1. South Carolina: Violent crime down; nonviolent crime up.
2. Malden, Massachusetts: Assaults and larcenies down. Robberies up.
3. Hamilton (Canada - Ontario?): Break-ins, car thefts, murders, and robberies all down.
4. San Diego: Crime down 1.9% but murder up 14.3%.
5. Ventura County, California: Down: homicide, rape, arson. Up: robbery, auto theft, petty theft, grand theft, burglary.
2. Malden, Massachusetts: Assaults and larcenies down. Robberies up.
3. Hamilton (Canada - Ontario?): Break-ins, car thefts, murders, and robberies all down.
4. San Diego: Crime down 1.9% but murder up 14.3%.
5. Ventura County, California: Down: homicide, rape, arson. Up: robbery, auto theft, petty theft, grand theft, burglary.
Authorities in the News
1. In Scotland they are trying a new technique: Divine Intervention.
2. A prison guard gives an inmate meth laced cigarettes.
3. A probation officer who gives information to the local drug dealers.
4. A DPS officer dealing drugs.
5. A police Detective helps steal $250,000 from drug dealers and loses his job as the consequence.
2. A prison guard gives an inmate meth laced cigarettes.
3. A probation officer who gives information to the local drug dealers.
4. A DPS officer dealing drugs.
5. A police Detective helps steal $250,000 from drug dealers and loses his job as the consequence.
23 September 2004
Around the Web
1. Heck, if she was billing $650 a hour why did she even bother to get a legal degree?
2. I think it's mandatory that each law student discovers Mayo v. Satan and His Staff.
3. The 2d Circuit holds that bans on the use of computers aren't ripe for appeal until after the prison sentence has been served.
4. The Socratic method, a good way to cram a year's worth of education into three years.
5. Is the Fighting Fourth using en banc hearings in order to get particular results rather than following the law?
6. Answering law students' questions concerning intent.
7. If you can't find a crime here export the problem to Saudi Arabia.
8. Levi advertising during kidnappings?
9. Bite him in the neck and knee him in the OUCH.
10. Cop Talk: Do you know what an unloaded gun is? A paperweight.
11. Holy Cow!!!! There's a liberal at the Fighting Fourth?!?!?
12. Is mailing fake anthrax a "communication containing any threat to injure the person of the addressee"?
13. Screaming Bean adresses the most important matter in the 3L year: women with skirts that are too short and are commando. I may have gone to the wrong law school.
14. Who cares if the jurors are using cocaine and selling drugs during the trial?
15. What type of memory?
16. I'm safe. But wait a sec . . . I don't own a horse. Maybe I can hook my dogs up to a small cart and let them pull me home?
2. I think it's mandatory that each law student discovers Mayo v. Satan and His Staff.
3. The 2d Circuit holds that bans on the use of computers aren't ripe for appeal until after the prison sentence has been served.
4. The Socratic method, a good way to cram a year's worth of education into three years.
5. Is the Fighting Fourth using en banc hearings in order to get particular results rather than following the law?
6. Answering law students' questions concerning intent.
7. If you can't find a crime here export the problem to Saudi Arabia.
8. Levi advertising during kidnappings?
9. Bite him in the neck and knee him in the OUCH.
10. Cop Talk: Do you know what an unloaded gun is? A paperweight.
11. Holy Cow!!!! There's a liberal at the Fighting Fourth?!?!?
12. Is mailing fake anthrax a "communication containing any threat to injure the person of the addressee"?
13. Screaming Bean adresses the most important matter in the 3L year: women with skirts that are too short and are commando. I may have gone to the wrong law school.
14. Who cares if the jurors are using cocaine and selling drugs during the trial?
15. What type of memory?
16. I'm safe. But wait a sec . . . I don't own a horse. Maybe I can hook my dogs up to a small cart and let them pull me home?
22 September 2004
Aquinas in the Courtroom
Just finished Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct.
It's actually more like a series of essays rather than a coherent book and therefore it is somewhat repetitive. The general idea that is behind Aquinas' teachings on the law is:
It's actually more like a series of essays rather than a coherent book and therefore it is somewhat repetitive. The general idea that is behind Aquinas' teachings on the law is:
Human law is law only by virtue of its accordance with right reason, and by this means it is clear that it flows from Eternal Law.This point is repeated over and over with depth and nuances. The post which follow are portions I found interesting.
In so far as it deviates from right reason it is called an unjust law; and in such a case, it is no law at all, but rather an assertion of violence.
Summa Theologica, Pt I-II,Question 93, Article 3
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