1) 14 year olds facing a 1st degree murder charge.
2) If you give permission for someone else to come into your home police automatically are able to come into your home.
3) If the Bill of Rights was introduced into Congress today, it would not make it out of committee.
4) The feds handicap a mayor's race.
5) Why would you set up a fake firm and lure PD's out into the real world with it?
6) If you steal a police car don't come to court wearing the officer's shirt.
7) The new laws passed by the Virginia General Assembly (via Commonwealth Conservative). Perhaps most interesting is that the anti-minor/driver use of a cell phone bill died. It was withdrawn because a Senator wanted to allow hands free phones. Meanwhile, Commonwealth Commonsense is upset that cameras at red lights are going away.
8) ADS discusses in depth the Supreme Court decision which forbids prisons to segregate incoming inmates by their races.
28 February 2005
26 February 2005
A Surprise From The Virginia Court of Appeals
I am pleased to announce that the Virginia Court of Appeals has applied the Exclusionary Rule to violations of state law. You read that correctly, the Court of Appeals held in Moore v. Commonwealth that when law enforcement breaks state statutes, the fruits of the unlawful arrest are inadmissible.
Moore was driving with his dog, when several law enforcement officers pulled him over. The officers were under the mistaken belief that Moore was an individual who had just been released from a federal penitentiary. The officers realized their mistake, but also discovered that Moore was driving with a suspended license. Under Virginia Code 46.2-301(C) driving with a suspended license is a Class 1 misdemeanor.
In Moore, the officers arrested Moore for driving with a suspended license. However, under Virginia Code 19.2-74 the officers were required to issue Moore a summons. Thus, the officers broke Virginia state law.
The Court of Appeals extended the Supreme Court holding of Knowles v. Iowa. In Knowles, the Supreme Court held that when an police officer conducts a search when only a citation has been issued the fruits of the search are unconstitutional. Thanks to Moore, when an officer unlawfully arrests an individual under Virginia state law, the fruits of the search incident to arrest are inadmissible in court.
For more analysis on the Exclusionary Rule at the Constitutional level see Repercussions When Law Enforcement Breaks the Law. Additionally, it is possible that the outcome of the case will change when the Virginia Supreme Court weighs in on the issue.
Two Corrections: In the previous article, I incorrectly stated that the Virginia Supreme Court was reviewing Moore v. Commonwealth. Although the Virginia Supreme Court has reviewed a case by the same name, it is a different case with a very different issue. I apologize for any confusion. Also I incorrectly predicted that the Virginia Court would hold that the evidence would be admissible if only state law is broken. I am happy to be proven wrong.
Moore was driving with his dog, when several law enforcement officers pulled him over. The officers were under the mistaken belief that Moore was an individual who had just been released from a federal penitentiary. The officers realized their mistake, but also discovered that Moore was driving with a suspended license. Under Virginia Code 46.2-301(C) driving with a suspended license is a Class 1 misdemeanor.
In Moore, the officers arrested Moore for driving with a suspended license. However, under Virginia Code 19.2-74 the officers were required to issue Moore a summons. Thus, the officers broke Virginia state law.
The Court of Appeals extended the Supreme Court holding of Knowles v. Iowa. In Knowles, the Supreme Court held that when an police officer conducts a search when only a citation has been issued the fruits of the search are unconstitutional. Thanks to Moore, when an officer unlawfully arrests an individual under Virginia state law, the fruits of the search incident to arrest are inadmissible in court.
For more analysis on the Exclusionary Rule at the Constitutional level see Repercussions When Law Enforcement Breaks the Law. Additionally, it is possible that the outcome of the case will change when the Virginia Supreme Court weighs in on the issue.
Two Corrections: In the previous article, I incorrectly stated that the Virginia Supreme Court was reviewing Moore v. Commonwealth. Although the Virginia Supreme Court has reviewed a case by the same name, it is a different case with a very different issue. I apologize for any confusion. Also I incorrectly predicted that the Virginia Court would hold that the evidence would be admissible if only state law is broken. I am happy to be proven wrong.
Infinite Variety: A New Nigeria Scam
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BTK
It looks as though they've caught the BTK serial killer.
25 February 2005
In the News
1) Segregation in prison is subject to strict scrutiny.
2) In Canada being acquitted is not enough to keep you from being brought back to trial. The disadvantage of not having that pesky double jeopardy clause.
3) India is thinking about reforming its criminal system.
4) Euro countries are going to start sharing criminal backgrounds.
5) Setting cameras up around town doesn't help stop crime.
6) Kicked the drug habit but sold to pay off his former dealers.
7) Crime goes down in Japan but criminal acts by foreigners go up.
8) An Iranian girl is sentenced to 100 lashes when a judge doesn't belief her rape claim.
2) In Canada being acquitted is not enough to keep you from being brought back to trial. The disadvantage of not having that pesky double jeopardy clause.
3) India is thinking about reforming its criminal system.
4) Euro countries are going to start sharing criminal backgrounds.
5) Setting cameras up around town doesn't help stop crime.
6) Kicked the drug habit but sold to pay off his former dealers.
7) Crime goes down in Japan but criminal acts by foreigners go up.
8) An Iranian girl is sentenced to 100 lashes when a judge doesn't belief her rape claim.
23 February 2005
Don't Drink and Prosecute
The things lawyers do:
This story found and gleefully appropriated from SW Va Law. If you read it here you are now subject to an adhesion contract requiring you to go check out his blog.
Tasker had been drinking with friends and thought it would be funny to shed his clothes and run to a friend's car in the parking lot of a Key West motel.And this guy was a prosecutor. "Was", I think, probably being the important word in that sentence. You can't do something that silly (or at least get caught) until you join the private side.
But Tasker apparently got in the back seat of a car occupied by a woman waiting for her boyfriend. The woman screamed and her boyfriend appeared. After the woman called 911, a Key West police officer found Tasker in the middle of the parking lot.
This story found and gleefully appropriated from SW Va Law. If you read it here you are now subject to an adhesion contract requiring you to go check out his blog.
22 February 2005
Double Jeopardy Means Double Jeopardy!
Smith v. Massachusetts
After the prosecution has finished presenting evidence - including statements along the lines of "He shot me with a pistol - either a .38 or.32" - the defense moves to have an unlawful possession charge found not guilty because one of the necessary elements of the charge has not been proven: that the firearm is less than 16 inches.
While I'd have thought it fairly common knowledge that a .38 or a .32 pistol is less than 16" apparently it wasn't and the judge approves of the defendant's motion. Perhaps he understood the law to require actual introduction of the length into evidence and did not believe an inference based on common knowledge to be sufficient. In any event it is entered into the record that the motion is granted.
At the close of all evidence (there were other charges) the prosecutor presents the judge with case law that convinces him that he was wrong in his earlier decision. Before the jury is given instructions or closing arguments the judge reinstates the charge (jury never knew it was gone) and defendant is found guilty.
Justice Scalia, writing for the majority, finds that this violates double jeopardy. The mid-trial acceptance of the defendant's motion is an acquital and therefore reinstating the charge after the defendant might have introduced prejudicial evidence he would never have introduced had the charge remained is a "snare" which defendants ought not to have to face.
If a State's statutes, rules of court, announced common law, or exercise of the State supreme court's "supervisory power" (huh? Wouldn't that be the rules?) allow reinstatement of a charge then double jeopardy does not occur because . . . Well, okay the decision doesn't really say why. I'd guess it would be because the defendant had fair warning of the rules of the game.
Nevertheless, when the Massachusetts appellate court laid down a similar rule it went too far because it didn't have this issue settled prior to this case. Interesting. Perhaps if the Massachusetts Supreme Court had taken the case it could have exercised its "supervisory powers" and declared this procedure valid and been approved by the Federal Supreme Court. However, all the same arguments regarding prejudice against the defendant would still apply so that seems unlikely.
Basically, it looks like the Supreme Court has shut down common law in this area. The question becomes whether this will lead to any changes in the statutes or rules of court or if it will become the accepted standard?
LvVolokh
After the prosecution has finished presenting evidence - including statements along the lines of "He shot me with a pistol - either a .38 or.32" - the defense moves to have an unlawful possession charge found not guilty because one of the necessary elements of the charge has not been proven: that the firearm is less than 16 inches.
While I'd have thought it fairly common knowledge that a .38 or a .32 pistol is less than 16" apparently it wasn't and the judge approves of the defendant's motion. Perhaps he understood the law to require actual introduction of the length into evidence and did not believe an inference based on common knowledge to be sufficient. In any event it is entered into the record that the motion is granted.
At the close of all evidence (there were other charges) the prosecutor presents the judge with case law that convinces him that he was wrong in his earlier decision. Before the jury is given instructions or closing arguments the judge reinstates the charge (jury never knew it was gone) and defendant is found guilty.
Justice Scalia, writing for the majority, finds that this violates double jeopardy. The mid-trial acceptance of the defendant's motion is an acquital and therefore reinstating the charge after the defendant might have introduced prejudicial evidence he would never have introduced had the charge remained is a "snare" which defendants ought not to have to face.
If a State's statutes, rules of court, announced common law, or exercise of the State supreme court's "supervisory power" (huh? Wouldn't that be the rules?) allow reinstatement of a charge then double jeopardy does not occur because . . . Well, okay the decision doesn't really say why. I'd guess it would be because the defendant had fair warning of the rules of the game.
Nevertheless, when the Massachusetts appellate court laid down a similar rule it went too far because it didn't have this issue settled prior to this case. Interesting. Perhaps if the Massachusetts Supreme Court had taken the case it could have exercised its "supervisory powers" and declared this procedure valid and been approved by the Federal Supreme Court. However, all the same arguments regarding prejudice against the defendant would still apply so that seems unlikely.
Basically, it looks like the Supreme Court has shut down common law in this area. The question becomes whether this will lead to any changes in the statutes or rules of court or if it will become the accepted standard?
LvVolokh
Law School Blogs
Orin argues that blogs have supplanted case notes. The only possible flaw I can find in his argument is that I'm not sure a whole lot of attorneys know what blogs are. I find myself helping other attorneys to use WestLaw at the law library and have gotten blank looks when I've said the word "blog." Still, I imagine that as more and more students come out of law school trained in computers this will fade.
Of course there is also the reality that every student wants to write a case note to have something to put on his resume. Because, as we all know, that 8 page note on a case nobody has heard of (or will, ever again) is going to set you apart from the thousands of other students writing notes on cases nobody really cares about.
One interesting possibility is that a law school could start its own blog with student staffing. For example, the W&L Race and Ethnic Ancestry Law Journal (where yours truly wrote his case note) could become The REAL Blog. This would allow quick updates on cases of note. It could also cover relevant items in the news. It would allow students a place where they could have their work "published." They could also have reactions from others who have an interest in the blog's subject matter, either through email, comments, or a post on another blog. Of course, there would be some sort of "editor" to assign different people different areas of responsibility (or at least to make sure no flame wars occur). One major advantage it would have over journals is that when listed on a resume the potential employer can actually go look at the blog and see the insightful analysis contained therein.
Anyway, there's the idea. I gift it to you all. After several years of committee studies and worries that it will lower perceived academic standards for the institution maybe some law school will actually adopt it.
Of course there is also the reality that every student wants to write a case note to have something to put on his resume. Because, as we all know, that 8 page note on a case nobody has heard of (or will, ever again) is going to set you apart from the thousands of other students writing notes on cases nobody really cares about.
One interesting possibility is that a law school could start its own blog with student staffing. For example, the W&L Race and Ethnic Ancestry Law Journal (where yours truly wrote his case note) could become The REAL Blog. This would allow quick updates on cases of note. It could also cover relevant items in the news. It would allow students a place where they could have their work "published." They could also have reactions from others who have an interest in the blog's subject matter, either through email, comments, or a post on another blog. Of course, there would be some sort of "editor" to assign different people different areas of responsibility (or at least to make sure no flame wars occur). One major advantage it would have over journals is that when listed on a resume the potential employer can actually go look at the blog and see the insightful analysis contained therein.
Anyway, there's the idea. I gift it to you all. After several years of committee studies and worries that it will lower perceived academic standards for the institution maybe some law school will actually adopt it.
21 February 2005
Assault Against Afghan Prisoner
David Passaro is the only civilian facing federal charges involving a detainee in military custody. Passaro was a CIA contractor who is charged with beating a prisoner in Afghanistan who later died. Passaro is facing four counts of assault. According to the Washington Post, his lawyers argue that Passaro was protecting the nation against terrorists.
20 February 2005
A New Twist for Consensual Searches
In United States v. Smith, decided just last month, the Fourth Circuit has taken the rule regarding consensual searches to a new level. It was late at night when Smith became lost driving near CIA headquarters. He stopped for directions at a callbox at the access road to the main gate for the headquarters. An officer directed him to a barrier closer to a gate. Smith was then surrounded by officers, one of whom was pointing a shotgun at his car (the officers could not agree as to whether it was pointing directly at Smith at the time). The 4th Circuit Court of Appeals held that it did not matter whether the officers had reasonable suspicion to make a seizure. In fact, the 4th Circuit held that the Fourth Amendment did not apply, since the encounter was consensual.
Under United States v. Mendenhall, the Supreme Court has stated that to determine if a seizure has occurred, the court should apply an objective standard on whether the reasonably prudent person would feel free to leave. Smith makes a good argument that he was not free to leave when he was surrounded by officers with guns drawn. The 4th Circuit states that it does not matter whether Smith felt free to leave since he drove up to the barrier voluntarily and since the officers had a reasonable belief that the encounter was consensual.
First, although Smith may have driven up to the barrier voluntarily initially, he did so to get directions not to be threatened with firearms. Additionally, the Supreme Court has held numerous times, that what may be initially a consensual encounter may turn into a seizure when the reasonably prudent person no longer feels free to leave. See Terry v. Ohio.
Second, the Supreme Court has held under Mendenhall, that the court looks at whether a reasonably prudent person in the same circumstances as Smith would have felt free to leave. The 4th Circuit disregards this test, and looks only to whether a reasonably prudent law enforcement officer thought that the individual was consenting to the seizure.
Finally, the 4th Circuit held that a reasonable prudent person would consent to having guns drawn on them and a search of their automobile since they knew that they were approaching CIA headquarters. This may be true under circumstances other then those in this case. The officer that directed Smith to the barrier did not mention anything about a search of his car, or to expect that he would have weapons pointed at him. Additionally, there were no signs signaling to members of the public that by driving on the access road, they were consenting to any types of searches, seizures, or should expect to be stopped.
Under United States v. Mendenhall, the Supreme Court has stated that to determine if a seizure has occurred, the court should apply an objective standard on whether the reasonably prudent person would feel free to leave. Smith makes a good argument that he was not free to leave when he was surrounded by officers with guns drawn. The 4th Circuit states that it does not matter whether Smith felt free to leave since he drove up to the barrier voluntarily and since the officers had a reasonable belief that the encounter was consensual.
First, although Smith may have driven up to the barrier voluntarily initially, he did so to get directions not to be threatened with firearms. Additionally, the Supreme Court has held numerous times, that what may be initially a consensual encounter may turn into a seizure when the reasonably prudent person no longer feels free to leave. See Terry v. Ohio.
Second, the Supreme Court has held under Mendenhall, that the court looks at whether a reasonably prudent person in the same circumstances as Smith would have felt free to leave. The 4th Circuit disregards this test, and looks only to whether a reasonably prudent law enforcement officer thought that the individual was consenting to the seizure.
Finally, the 4th Circuit held that a reasonable prudent person would consent to having guns drawn on them and a search of their automobile since they knew that they were approaching CIA headquarters. This may be true under circumstances other then those in this case. The officer that directed Smith to the barrier did not mention anything about a search of his car, or to expect that he would have weapons pointed at him. Additionally, there were no signs signaling to members of the public that by driving on the access road, they were consenting to any types of searches, seizures, or should expect to be stopped.
19 February 2005
Synopsis on Recent Virginia Appellate Cases
Davis v. Commonwealth
In a recent case the Virginia Court of Appeals addressed the issue of what “court custody” includes. Davis was out on bond and ordered to report to the jail after a bench trial that where he pled guilty to five felony drug charges and three misdemeanor offenses. When Davis failed to report to the jail, the trial court found him guilty of escaping from court custody and sentenced him to two years of prison with one year suspended. The Court of Appeals reversed the trial court, finding that Davis was not in the court’s custody. The Court held that for a person to be in custody there must be some type of physical control or submission. By not reporting to the jail, Davis never submitted to the court’s authority. However, the trial court can still use it’s other remedies for failure to abide its orders.
Gilbert v. Commonwealth
In this case the Virginia Court of Appeals held that spitting on another person, even without inflicted an injury constitutes an assault and battery. The court held that when Gilbert spit on an officer’s head he committed an act that involved physical contact and was deeply offensive. Although it seems a stretch that Gilbert intended to harm the officer purely by spitting on him, Gilbert also threatened to kill the officer before and after he spit.
Johnson v. Commonwealth
In a case decided just three days ago, the Virginia Court of Appeals held that when the defendant fails to address all of the holdings in his appeal when there are more then one alternative holdings by the lower court, then the result is a waiver of any claim of error with respect to that issue. This holding becomes clearer when given context. The trial court held that: 1) the officer who frisked Johnson did not exceed the permissible limits of a weapons search 2) and even if the officer had exceeded the permissible limits the doctrine of inevitable discovery would have made the fruits of the search admissible. Johnson only appealed the first holding as to whether the officer exceeded the permissible limits of a weapon search. The Court of Appeals declared that even if they found error in the first holding, the second holding was not appealed. Thus, the evidence would still be admissible, and the trial court’s holding would still stand. Since the outcome of the holding does not matter if only one issue is addressed, the Court of Appeals found that a waiver of any claim of error regarding the issue in that holding when all of the alternative holdings are not appealed.
In a recent case the Virginia Court of Appeals addressed the issue of what “court custody” includes. Davis was out on bond and ordered to report to the jail after a bench trial that where he pled guilty to five felony drug charges and three misdemeanor offenses. When Davis failed to report to the jail, the trial court found him guilty of escaping from court custody and sentenced him to two years of prison with one year suspended. The Court of Appeals reversed the trial court, finding that Davis was not in the court’s custody. The Court held that for a person to be in custody there must be some type of physical control or submission. By not reporting to the jail, Davis never submitted to the court’s authority. However, the trial court can still use it’s other remedies for failure to abide its orders.
Gilbert v. Commonwealth
In this case the Virginia Court of Appeals held that spitting on another person, even without inflicted an injury constitutes an assault and battery. The court held that when Gilbert spit on an officer’s head he committed an act that involved physical contact and was deeply offensive. Although it seems a stretch that Gilbert intended to harm the officer purely by spitting on him, Gilbert also threatened to kill the officer before and after he spit.
Johnson v. Commonwealth
In a case decided just three days ago, the Virginia Court of Appeals held that when the defendant fails to address all of the holdings in his appeal when there are more then one alternative holdings by the lower court, then the result is a waiver of any claim of error with respect to that issue. This holding becomes clearer when given context. The trial court held that: 1) the officer who frisked Johnson did not exceed the permissible limits of a weapons search 2) and even if the officer had exceeded the permissible limits the doctrine of inevitable discovery would have made the fruits of the search admissible. Johnson only appealed the first holding as to whether the officer exceeded the permissible limits of a weapon search. The Court of Appeals declared that even if they found error in the first holding, the second holding was not appealed. Thus, the evidence would still be admissible, and the trial court’s holding would still stand. Since the outcome of the holding does not matter if only one issue is addressed, the Court of Appeals found that a waiver of any claim of error regarding the issue in that holding when all of the alternative holdings are not appealed.
18 February 2005
Not Guilty
The Hooters girl murder trial ended with a not guilty finding after only a hour and fourty five minutes of jury deliberation.
17 February 2005
If You Walk Around Psychedelic
If you look so weird that people are calling the police saying that they are worried you are going to jump off a bridge you might want to answer before the police threaten to shoot you.
More on the Hooter's Waitress Murder
The accused took the stand and, to the surprise of all, says he didn't do it.
I watched a good portion of the defendant's testimony and he was well spoken and had all the right answers. Nobody at the courthouse is putting any money on how the verdict turns out.
I watched a good portion of the defendant's testimony and he was well spoken and had all the right answers. Nobody at the courthouse is putting any money on how the verdict turns out.
Yet Again Not Here
I gotta go write a brief, some interrogatories (yeah, I know civil work, uggg), and prep something else I promised to write. I shan't be posting until Tuesday.
Of course, that doesn't mean that all the other folks who have the right to publish here won't. We'll see.
Of course, that doesn't mean that all the other folks who have the right to publish here won't. We'll see.
Another Year - Another Failure to Pay
I wish I could say that I'm surprised that Virginia's General Assembly is once again refusing to fund indigent defense.
Why Retry?
The feds retry someone who had been found guilty of murder in Virginia in 1998, so that they could kill him. First, more than a little bloodthirsty. Second, they failed.
15 February 2005
More on the Hooters Waitress Murder
In the murder case I discussed yesterday, the defense started its case by calling a man who claims that he killed the woman, not the defendant.
Crime at Southern Appeal
William, at Southern Appeal, points to the involuntary intoxication defense which is being used in South Carolina.
BTW, this is the case which Court TV has been following for the last week.
BTW, this is the case which Court TV has been following for the last week.
Phone Scammers Plead Guilty
Remember that email you got promising you all the free porn you wanted if you'd just give a credit card number to verify that you are an adult?
Good thing you didn't: "Prosecutors said $230 million in fraudulent charges was levied on consumers who believed the sites needed their card numbers for age verification."
Good thing you didn't: "Prosecutors said $230 million in fraudulent charges was levied on consumers who believed the sites needed their card numbers for age verification."
14 February 2005
Volokh - Law Review Articles
Over at the Conspiracy, Eugene Volokh has a post about marketing law review articles through blawgs.
I just wanted to say that if anyone has an article they'd like to point out (limited to CrimLaw matters) I will be happy to put up a paragraph or two about it. I cannot promise to find the time to read a bunch of 40-70 page articles and review them but I'll be happy to put something up as to what the author states to be the point of the article. I'd prefer to have something to link to but that's not an absolute necessity.
I just wanted to say that if anyone has an article they'd like to point out (limited to CrimLaw matters) I will be happy to put up a paragraph or two about it. I cannot promise to find the time to read a bunch of 40-70 page articles and review them but I'll be happy to put something up as to what the author states to be the point of the article. I'd prefer to have something to link to but that's not an absolute necessity.
Ongoing Murder Trial
My local courthouse has a jury trial ongoing for a murder which has all the makings of a Court TV show - if only Virginia judges would allow them in a court room. A very pretty young woman who works at Hooters disappears in the middle of the night. Her on-again-off-again, at least verbally abusive boyfriend called in her disappearance and is the accused.
As I can discern it (through the local news and the courthouse gossip vine), the prosecution's strongest evidence is that the accused made some statements before they found the body in which he talked about the decedent in the past tense and talked about some evidence which they claim no one told him about. One dog traced an unidentified scent from the lady's abandoned car almost to their mutual house. Another couple bloodhounds were given the scent of the lady's makeup and trailed a scent from the abandoned car to a pond. The governments' theory of the case appears to be that the defendant killed the lady, hid her body at a sports park near where the dogs lost the scent at the pond, and the next morning slipped away from the police who were tailing him and hid the body in a dumpster at an apartment complex.
The difficulty is that the prosecutor's theory of how it happened just does not seem to fit. They don't seem to have any forensic evidence at the house or in the car reflecting a struggle or injury. They don't have a weapon which can be tied to the bullet wound. It's debatable whether the defendant had time to do the things the prosecution alleges the night of the murder. It gets real thin when the prosecution claims he slipped the police for "at least 18 minutes" the next day during which he went to get the body, made "a 27-mile, 74-stoplight roundtrip", and hid the body at the apartment complex.
Of course, the prosecution also has the problem that another man has confessed to the murder.
There's more to it but you'll have to read the articles to get it all.
Suspect in homicide was victim's boyfriend, is the father of 6-year-old son
Prosecutor: Suspect knew details in slaying
But defense counters that evidence of guilt is lacking in woman's shooting death
Police describe crime scene
Evidence draws tears from defendant
Murder trial testimony conflicts
Witness alleges death threat
She says defendant said he could kill the Hooters waitress
As I can discern it (through the local news and the courthouse gossip vine), the prosecution's strongest evidence is that the accused made some statements before they found the body in which he talked about the decedent in the past tense and talked about some evidence which they claim no one told him about. One dog traced an unidentified scent from the lady's abandoned car almost to their mutual house. Another couple bloodhounds were given the scent of the lady's makeup and trailed a scent from the abandoned car to a pond. The governments' theory of the case appears to be that the defendant killed the lady, hid her body at a sports park near where the dogs lost the scent at the pond, and the next morning slipped away from the police who were tailing him and hid the body in a dumpster at an apartment complex.
The difficulty is that the prosecutor's theory of how it happened just does not seem to fit. They don't seem to have any forensic evidence at the house or in the car reflecting a struggle or injury. They don't have a weapon which can be tied to the bullet wound. It's debatable whether the defendant had time to do the things the prosecution alleges the night of the murder. It gets real thin when the prosecution claims he slipped the police for "at least 18 minutes" the next day during which he went to get the body, made "a 27-mile, 74-stoplight roundtrip", and hid the body at the apartment complex.
Of course, the prosecution also has the problem that another man has confessed to the murder.
There's more to it but you'll have to read the articles to get it all.
Suspect in homicide was victim's boyfriend, is the father of 6-year-old son
Prosecutor: Suspect knew details in slaying
But defense counters that evidence of guilt is lacking in woman's shooting death
Police describe crime scene
Evidence draws tears from defendant
Murder trial testimony conflicts
Witness alleges death threat
She says defendant said he could kill the Hooters waitress
More on Law Enforcement Breaking the Law
Yesterday, Yasmeen pointed to a case before the Virginia Supreme Court which addresses whether an arrest makes the subsequent search unconstitutional if the arrest was a violation of Virginia law but not, in-and-of-itself, unconstitutional.
I addressed this issue somewhat while discussing Devenpeck here (read the comments too). I think Yasmeen is probably right in her assesment as to the probable outcome of the pending case.
I addressed this issue somewhat while discussing Devenpeck here (read the comments too). I think Yasmeen is probably right in her assesment as to the probable outcome of the pending case.
13 February 2005
Reprecussions When Law Enforcement Breaks State Law
There is an interesting issue up before the Supreme Court of Virginia that is a case of first impression. The case is Moore v. Commonwealth; but you’ll have to wait a few weeks before the opinion comes out. The issue that the Supreme Court heard argument on is whether a violation of state law plays any part in determining a Fourth Amendment violation triggering the Exclusionary Rule.
The Exclusionary Rule precludes evidence seized in violation of an individual’s constitutional rights from being used to convict of a crime. The rule is most often applied when police conduct an illegal search or seizure. The rule was first applied to federal courts in 1914 by the decision in Weeks v. United States. In Wolf v. Colorado, the Supreme Court applied the rule to the states.
In Knowles v. Iowa, the Supreme Court held that there is no search incident to citation exception. In other words, when there are minor citations an officer cannot search someone without a warrant. However, the Supreme Court has also held in Atwater v. City of Lago Vista, that when a state has a statute that allows for arrest of misdemeanors without a warrant, there is no constitutional violation.
Atwater was a case in Texas. In Virginia, the rule is that an officer cannot arrest someone for a misdemeanor unless it was committed in the officer’s presence. In the current case of Moore before the Virginia Supreme Court, the officer arrested an individual for a misdemeanor that was not committed in his presence. Incident to the arrest, the officer searched and seized evidence that was used to convict of a crime. The actual arrest was a violation of state law, rather then constitutional law. Thus, whether the exclusionary rule would apply is at issue.
The Virginia Supreme Court could hold a number of ways on this case. It is most likely that the court will hold that a violation of state law, does not trigger the Exclusionary Rule, and the evidence seized in violation of the law can be used to convict of a crime.
The court could also analogize with Knowles, and decide that where a state does not provide a statute that allows for arrest of misdemeanors without a warrant, an officer cannot search and seize evidence for minor citations even if the officer arrests the individual, when the arrest violates state law.
The most unlikely outcome, but in some ways the most logical, the court could examine the reasons for the Exclusionary Rule and decide whether the state of Virginia should apply the rule to police conduct that violates state law. Although some would argue that the Exclusionary Rule potentially allows criminals to go free, the Rule has several benefits and advantages over other remedies. First, the Rule protects privacy by discouraging police from breaking the law, and encouraging them to obtain warrants. Second, the Rule provides a check on unfettered government power. Third, in practice Courts have found that the Rule is the only effective deterrent. See Wolf for Supreme Court's discussion on the Exlusionary Rule.
The Exclusionary Rule precludes evidence seized in violation of an individual’s constitutional rights from being used to convict of a crime. The rule is most often applied when police conduct an illegal search or seizure. The rule was first applied to federal courts in 1914 by the decision in Weeks v. United States. In Wolf v. Colorado, the Supreme Court applied the rule to the states.
In Knowles v. Iowa, the Supreme Court held that there is no search incident to citation exception. In other words, when there are minor citations an officer cannot search someone without a warrant. However, the Supreme Court has also held in Atwater v. City of Lago Vista, that when a state has a statute that allows for arrest of misdemeanors without a warrant, there is no constitutional violation.
Atwater was a case in Texas. In Virginia, the rule is that an officer cannot arrest someone for a misdemeanor unless it was committed in the officer’s presence. In the current case of Moore before the Virginia Supreme Court, the officer arrested an individual for a misdemeanor that was not committed in his presence. Incident to the arrest, the officer searched and seized evidence that was used to convict of a crime. The actual arrest was a violation of state law, rather then constitutional law. Thus, whether the exclusionary rule would apply is at issue.
The Virginia Supreme Court could hold a number of ways on this case. It is most likely that the court will hold that a violation of state law, does not trigger the Exclusionary Rule, and the evidence seized in violation of the law can be used to convict of a crime.
The court could also analogize with Knowles, and decide that where a state does not provide a statute that allows for arrest of misdemeanors without a warrant, an officer cannot search and seize evidence for minor citations even if the officer arrests the individual, when the arrest violates state law.
The most unlikely outcome, but in some ways the most logical, the court could examine the reasons for the Exclusionary Rule and decide whether the state of Virginia should apply the rule to police conduct that violates state law. Although some would argue that the Exclusionary Rule potentially allows criminals to go free, the Rule has several benefits and advantages over other remedies. First, the Rule protects privacy by discouraging police from breaking the law, and encouraging them to obtain warrants. Second, the Rule provides a check on unfettered government power. Third, in practice Courts have found that the Rule is the only effective deterrent. See Wolf for Supreme Court's discussion on the Exlusionary Rule.
12 February 2005
Curious About Islamic Law?
Here is a very interesting article titled Islamic Law: Myths and Realities that does an amazing job of explaining generalities about both the Muslim religion and it’s affect on Arabic laws and judicial systems.
11 February 2005
An Evolution of Torture
Pointing to the trend of longer prison sentences, some scholars argue that America is on a track of ever increasing levels of harshness in its criminal policies. Many feel that rehabilitation programs have fallen by the wayside, while America pursues a policy of merciless vengeance. In Harsh Punishment, James Whitman concludes that American punishment is cruel compared to other modern industrialized countries.
On the up side, our punishments look like a slap on the wrist compared to those just a few hundred years ago. In Colonial Williamsburg the punishment for stealing food was a good old fashioned hanging. For the crime of failure to attend church in Virginia between 1611 and 1662, the “criminal” received a punishment of deprivation of food for one day. If the naughty parishioner was a repeat offender, the punishment for the second time was a whipping. And for those lost souls who missed church three times, a punishment of 6 months of rowing in the colony’s galleys was likely to keep them praying.
Additionally, the horrific punishment of being drawn and quartered was thankfully abolished in 1870. Although this punishment was usually only reserved for treason, the fact that it ever existed puts a dark stain on humanity. The full punishment of drawing and quartering was a four step process:
First the individual was dragged on a hurdle to the place on execution.
Then they were hanged by the neck and removed from the noose just before death.
Then occurred probably the worst part of the punishment; they were disemboweled and their genitalia and entrails were burned before their eyes.
Finally, they were beheaded and their body was divided into four parts which were often put on public display.
Looking at historical punishments, makes one wonder how modern punishments will be viewed in a few hundred years. Will future Americans gasp in horror as they read about the atrocities committed in our day? Or will they laugh, considering our punishments and our reasoning trivial and silly?
On the up side, our punishments look like a slap on the wrist compared to those just a few hundred years ago. In Colonial Williamsburg the punishment for stealing food was a good old fashioned hanging. For the crime of failure to attend church in Virginia between 1611 and 1662, the “criminal” received a punishment of deprivation of food for one day. If the naughty parishioner was a repeat offender, the punishment for the second time was a whipping. And for those lost souls who missed church three times, a punishment of 6 months of rowing in the colony’s galleys was likely to keep them praying.
Additionally, the horrific punishment of being drawn and quartered was thankfully abolished in 1870. Although this punishment was usually only reserved for treason, the fact that it ever existed puts a dark stain on humanity. The full punishment of drawing and quartering was a four step process:
First the individual was dragged on a hurdle to the place on execution.
Then they were hanged by the neck and removed from the noose just before death.
Then occurred probably the worst part of the punishment; they were disemboweled and their genitalia and entrails were burned before their eyes.
Finally, they were beheaded and their body was divided into four parts which were often put on public display.
Looking at historical punishments, makes one wonder how modern punishments will be viewed in a few hundred years. Will future Americans gasp in horror as they read about the atrocities committed in our day? Or will they laugh, considering our punishments and our reasoning trivial and silly?
10 February 2005
Next Few Days
From Friday to Sunday I don't think I'll be able to post anything.
Never fear, Yasmeen has agreed to step in and class up the place. She's promised one post a day and while she wouldn't disclose the content of each she did say something about the unified field theory, Blackstone, John Marshall Harlan (the first guy), and the influence of Al Azhar on modern Middle Eastern criminal law.
By the time I come back I probably won't be needed around here anymore. ;-)
Never fear, Yasmeen has agreed to step in and class up the place. She's promised one post a day and while she wouldn't disclose the content of each she did say something about the unified field theory, Blackstone, John Marshall Harlan (the first guy), and the influence of Al Azhar on modern Middle Eastern criminal law.
By the time I come back I probably won't be needed around here anymore. ;-)
Crime & Federalism: Does Jail Work?
An interesting discussion in the post and comments about whether short term incarceration works.
My experience is that for a significant portion of my clients jail terms are just part of life. While it doesn't happen often, I've had more than one client who wanted to serve time rather than get a large fine - usually they are not scared of jail and pretty clear headed: "I either do some time now or I get a fine, can't pay it, and do the time later (and still owe the fine)." I've also represented your basic homeless guy who commits a minor crime so that he has a roof, bed, and meals during the winter.
When these clients do get upset it is usually because they are going to lose their job. Mind you, I'm not saying that clients like going to jail. I'm just saying that for a number of them it's just another of life's inconveniences.
Now, the people who are from a fairly standard middle class background get scared half to death when they first go to jail. I'm a big believer that these folks shouldn't spend too long in jail - maybe a week, at most two. If they are in the jail for a short period of time there is a good chance they will be "scared straight." However, if they are there for long enough to acclimatize they realize that it's not really all that bad. Books to read, television to watch, basketball to play, meals brought to your cell, and all those fears about what the other inmates will do to you aren't coming true. Eventually, the worst problem becomes simple boredom. At this point jail becomes useless.
My experience is that for a significant portion of my clients jail terms are just part of life. While it doesn't happen often, I've had more than one client who wanted to serve time rather than get a large fine - usually they are not scared of jail and pretty clear headed: "I either do some time now or I get a fine, can't pay it, and do the time later (and still owe the fine)." I've also represented your basic homeless guy who commits a minor crime so that he has a roof, bed, and meals during the winter.
When these clients do get upset it is usually because they are going to lose their job. Mind you, I'm not saying that clients like going to jail. I'm just saying that for a number of them it's just another of life's inconveniences.
Now, the people who are from a fairly standard middle class background get scared half to death when they first go to jail. I'm a big believer that these folks shouldn't spend too long in jail - maybe a week, at most two. If they are in the jail for a short period of time there is a good chance they will be "scared straight." However, if they are there for long enough to acclimatize they realize that it's not really all that bad. Books to read, television to watch, basketball to play, meals brought to your cell, and all those fears about what the other inmates will do to you aren't coming true. Eventually, the worst problem becomes simple boredom. At this point jail becomes useless.
09 February 2005
In the News
1) This trial started in my local courthouse today. I didn't get a chance to go watch but rumor has it that the evidence in it may even be weaker than the article suggests. All of which has got to make the prosecutors nervous since the defense attorney involved is probably the best criminal defense lawyer in the Commonwealth.
2) In further Virginia news, the Legislature is trying to make youths dress in a more dowdyish style. I can agree as to not allowing guys to wear pants that hang down to their knees (judging from my clients that style is fading anyway) but I'll miss the low cut female jeans. Question: would the low cut jeans be legal if there was nothing under them?
3) Silly crime stories, including:
6) Jury trials are expensive, long, require extra preparation, and often actually insert 12 people into the process who really believe in the words "innocent until proven guilty" and "proof beyond a reasonable doubt." Obviously, they must be done away with. Shameful.
7) Taken to the hospital, a suspect escapes in his underwear. Who says Virginia doesn't have mild winters?
2) In further Virginia news, the Legislature is trying to make youths dress in a more dowdyish style. I can agree as to not allowing guys to wear pants that hang down to their knees (judging from my clients that style is fading anyway) but I'll miss the low cut female jeans. Question: would the low cut jeans be legal if there was nothing under them?
3) Silly crime stories, including:
[S]everal years ago, Ketchikan police pulled over a young man and found pot in his car. The man said he had just purchased the car and that the pot must have belonged to the previous owner. The police told him to "tell it to the judge" (the previous owner).4) A Justice in Ohio pled guilty to DUI. From the video tape:
[S]he insisted she could drive safely and repeatedly asked Stidham to let her go.5) Not to be outdone, "[a] Pennsylvania Supreme Court justice hid a small pocketknife in his carry-on bag after airport screeners told him it could not be carried on the flight."
"My God, you know I decide all these cases in your favor," she said. "And my golly, look what you're doing to me."
6) Jury trials are expensive, long, require extra preparation, and often actually insert 12 people into the process who really believe in the words "innocent until proven guilty" and "proof beyond a reasonable doubt." Obviously, they must be done away with. Shameful.
7) Taken to the hospital, a suspect escapes in his underwear. Who says Virginia doesn't have mild winters?
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