Lex Radio 073105b

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Blog Posts Mentioned:

Sentencing Law & Policy

Public Defender Dude

Injustice Anywhere

Diary of a Criminal Solicitor

CBC News

Indefensible

DUI Blog

CrimProf 1, 2

SoCal Law Blog

Arbitrary & Capricious

Lex Radio 073105

Click on the Logo to find the rss for the PodCast.

Click on the Title for a direct download.

Today's PodCast:

Item 1: Congress Approves Effective Heroin Treatment

Item 2: Dumb and Dumber Marijuana 1, 2 & 3

Item 3: Alcohol Anklet

Item 4: High Crime 1, 2, 3

Item 5: Ineffective Counsel Without Counsel

Item 6: Happy Slapping

Item 7: Not not guilty anymore 1, 2


[addendum] Well, I used FeedBurner to make the podcast feed (changing Atom into RSS). When I tested it with iTunes it didn't work. In fact, iTunes actually opened a pdf file when I clicked on it. I then downloaded iPodder. It downloaded the right file but when I tried to play it iTunes would come up as iPodder's default player. I went into iPodder's settings and reset it to send files to Winpows Media Player and it worked (the player would give me a generic error statement but when I clicked play anyway it did). Anyway, If anybody has any suggestions about fixing this I'm open to suggestion.

[addendum 2] Well, my podcast works fine over at Odeo. Not sure how it got there. Either the good folks at Odeo are really good at searching out new podcasts or someone out there was kind enough to submit it. Now I have to include this bit of code

My Odeo Channel (odeo/c15c2bd7828d11a6)

so that I can claim my own podcast channel.

Why would graduating from college make a millionare more likely to break the law?

Yelling Phone

Well, I've been stiffed by two of my clients who had appointments this afternoon. However, a third managed to get ahold of me from the jail. He couldn't call my cell phone directly so he called a friend and had that friend call me and then put the two phones together, speaker to mouthpiece - mouthpiece to speaker. All-in-all, an innovative way to get a call to your attorney.

The only problem was that while we were talking his friend was engaging in a running screaming match with somebody else. I couldn't hear half the stuff he said and I had to yell so he could hear me. Every once in a while there would be a lull in the screaming and Client would try to get his point across but the screaming always started back up before he could finish. Thankfully, a family member had called about a half hour earlier and told me what was going on so finally I just yelled out the answers over my cell phone and (during a final lull) he says that he gets it and goodbye.

CarPundit and Mr. DA were commenting on my last post about how Atwater allows people who cannot be arrested to be arrested.

The question in Atwater was "whether the 4th Amendment forbids a warrantless arrest for a minor traffic offense, such as a misdemeanor seatbelt violation punishable only by a fine."

The court's answer: "We hold that it does not."

Now, CarPundit astutely points out that the rationale for this decision is not as broad as the holding. The rationale is that under the common law breach of peace misdemeanor arrests were allowed without warrants, as well as those arrests allowed under statutes passed by legislatures. Therefore, when Texas Code § 543.001 allows arrests for any violation of the Transportation Code it does not violate the Constitution.

I say again, the rationale is not as broad as the holding. Basically, this holds constitutional any arrest for any traffic offense and, through analogy, any other misdemeanor.

The court states that these are areas better left to States to legislate and cites statutes such as Va. Code §46.2—936 as proof that this is not a problem of constitutional magnitude. This section is, for lack of a better term, a catch and release statute. It requires that an officer to act in a specific manner:

Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title [Motor Vehicles] punishable as a misdemeanor, the arresting officer shall . . . take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice.

The problem is that, at least in Virginia, this law is unenforceable. A blatant violation of this statute - such as bringing someone in for a weekend in jail for having tinted windows - has no remedy. Understand that without a remedy written into the statute no procedural law in Virginia really carries much weight short of the federal constitutional boundaries. There is no such thing as exclusion of evidence for violation of laws or rights under the Virginia Constitution (of course, this matters to me more than the 1983 action in Atwater). Along the lines of Whren, it is an excuse for allowing a shakedown. I've discussed this previously here.

But surely, an officer wouldn't violate the law. Yeah, right.¹

The case on point in Virginia will be Moore v. Commonwealth. In Moore the officer made an illegal arrest leading to discovery of evidence of a more serious crime. The officer was required to issue a summons and release the defendant under Va. § 19.2-74(A)(1); instead, he expanded the detention into a full custodial arrest and performed a search subsequent to the arrest. The judge refused to throw the evidence out, explicitly citing Atwater.

A three judge panel overturned the conviction based upon Knowles v. Iowa, 525 U.S. 113 (1998)(citation is not enough to allow a search). Yasmeen discussed this here and here. However, the Court of Appeals has agreed to hear this en banc and whenever it does this in a case which favored the defendant the smart money is on a reversal of the three court panel. The real question might be how the Virginia Supreme Court handles this situation.



¹ I say again, as I have said before, I don't lay this at the feet of the officers. Officers are trained to do their utmost to bring law-breakers to justice. The courts and legislatures determine how far the officers can go. The legislature here says officers can only go so far. The courts tell them they can go further and the courts are the ones who interpret and enforce the law. I've no gripes with an officer who does what the court tells him he can do.

As much as I hate to disagree with Steve, the fact that Judge Roberts has followed in the footsteps of an absolutely atrocious opinion by Justice Souter in Atwater (police can arrest you for any legal violation, such as not wearing a seatbelt, even if the law doesn't allow an arrest for the violation), is not a point in his favor.

Finding a way to distinguish it - Now, that would have been impressive.

Just remember folks, thanks to Justice Souter it's constitutional to arrest you upon actions for which you cannot be arrested.

Skelly links thru to a discussion of whether the Mass. lawyers are correct or incorrect in trying to get paid at a higher rate, even after the State Legislature has given one raise. Much as Skelly has done, I will not comment at this time.

Anyway, what grounds have I to complain? The Virginia General Assembly has allotted funds for a raise in the payment ceiling for felonies. For your basic felony Virginia now pays $428 instead of $395, thus paying for 4.75 hours of work on a felony rather than merely 4.39 (pay rate is $90 per hour). Of course, it's a step closer to the $445 that the law says I am to be paid. Va Code sec 19.2-163. That would pay for 4.94 hours of representation.

A judge refuses to seat all white juries.

Having stood in a courtroom with a 19 year old Black, male defendant and looked up at the twenty older, white, well-to-do jurors (OMG they can't all be bankers or banker's wives! Can they?), I understand the sentiment. I think it's probably a constitutionally infirm stance, but I understand the sentiment.

In the United States we pass ineffective laws in reaction to spamming. In Russia they have a more permanent solution.

Unfireable Judge?

Cool. How can I get a job where I can lose my qualifications and still keep the job?

Free Stuff for Pretending to be Simpson's Assistant

Ya gotta admire the gumption.

Around the Web

1) An outline of current legislation to further restrict the availability of habeas relief.

2) Is punishing a person differently because of the number of friends and family he has justified?

3) If you go to prison for getting the drugs you need the prison will then provide the drugs you need. Who said we don't have socialized medical care?

4) Now, now Skelly. You know that your office is supposed to try every trial no matter how guilty the client is and how severe a tax he will pay for the trial. I mean, after 6 months or so of each attorney trying a jury or two a day you'll have made it through what would normally have taken a week or two and you can start filing all those speedy trial motions and 1983 motions for overcrowded jails. The prosecutors would probably have to stop prosecuting the smaller crimes just so they could make sure the rapists and murderers actually went to trial. Of course, this strategy gets a lot of people (at least in the beginning) much more prison time then they would have. If your Bar has any problems with you just refer them to the Good Father - he'll straighten them out.

5) Castration? UUUuuggghh. The word alone makes my spine shiver.

6) Killing helpless animals because you are too ignorant to know that they aren't all trained to fight.

7) You cannot remove a juror who does not want to convict just because he cussed at the other jurors.

8) What do you do when the Defendant tells you he is going to open the trial, argue the closing, and be his own expert witness?

9) Random checks are coming to the NY subways. "Random" will, of course, devolve into people who fit whatever a particular officer pictures a person in possession of drugs to look like (and those who look like bombers as well). There will be whatever number of checks of little old ladies and priests are needed to uphold the charade but the number of searches which turn up illicit items is going to be higher then what would happen in a random sampling.

10) SoCalLaw has started podcasting. Y'all will remember I toyed with both video and audio blogging a while back but stopped because it was just too time consuming. Maybe I'll go back to putting up a once a week video or audio post. If I do you can blame it all on SoCalLaw.

Click on the radio for CrimLaw Radio

It takes a little bit to load. If anyone knows how I can get it to load and play at the same time I would appreciate the information.

U.K. Barristers to strike over criminal defense fees.

Being a Tea-Totaler is a Sin

Betcha never thought you'd see that posited.

Your IQ Is 135

Your Logical Intelligence is Genius Your Verbal Intelligence is Genius Your Mathematical Intelligence is Genius Your General Knowledge is Exceptional

A Quick and Dirty IQ Test

Terror in Egypt

For all Egyptians and others who lost people in the bombings, may God bless you all.

Egypt, which has been on the front line in the war against terrorism much longer than we have been, was rocked by two, perhaps three bombs. 88 people, mostly Egyptians, were killed. The attack took place in Sharm El-Sheikh, a tourist town in the southern Sinai.

I lived in Sharm El-Sheikh for 6 months as part of the MFO. The locals are good people and hard working folk. There is also a battalion of U.S. Soldiers, an Italian Naval presence, Dutch MP's, and Egyptian forces.

It appears that the terrorists bypassed the military targets and set off one suicide bomb by running an exploding car into a hotel lobby. This was not particularly successful. The reason for this is probably because the hotels there are built spread out around a pool and restaurant. Hitting the lobby could only get the few people there - most of whom would be the Egyptian employees.

The second one was set off in the solely Egyptian part of town, in the market (Egyptians hang out at the markets shopping and going to coffee shops). This one killed far more people, almost certainly all Egyptians.

This is despicable.

Al-Qaida has claimed responsibility. Cowardly pigs. Yadrub bateikum.

Have Opinion, Will Travel seems to have gone the way of the dodo.

Boo! Hiss! Always a sad day when a promising blawg closes its doors.

The transcript of the grand jury testimony of the girl in the Roman Polanski rape case.

Thanks to J.M.

Basketball Crime

Having grown up in Kentucky, I know that there is only one true genre of basketball. However, I realize that some of you have been drawn into watching the NBA; heck, there might even be Clippers fans out there. For those of you who have been drawn off the true path and into the NBA heresy, there is actually someone out there tracking and analyzing the illegal activities of NBA players. Admittedly, this is how I mostly hear about NBA players with the exception of sports radio hosts complaining about how boring Tim Duncan is (he's the best player in the world and they complain because he doesn't cause trouble - it goes a long way toward explaining why I'm not the hugest NBA fan).

All humor and ranting aside, Professor McCann has done what appears to be an interesting post on when in their careers NBA players have gotten in trouble with the law. It's too late and I don't have the brain power left to really focus on the post (I've spent the night working on a nasty appeal - my brain is fried). I'll have to revisit it tomorrow.

In the meantime, I suggest that all ya'll go take a look.

"Officers are required by the state to make one OWI arrest every eight man-hours."

Via KEMPLOG.

Scotty's gone.

Contemporaneous Record & Crawford

I was watching a possession of marijuana charge today. The defendant was pulled over for driving suspended and the officer found marijuana in the glove compartment.

The officer testified that the defendant admitted the marijuana was his.

On cross, the officer admitted that all he could remember the defendant stating several times "C'mon, gimme a break." He had no memory of any question on his part or any other statement by the defendant.

The judge, sua sponte, starts asking the officer if he is relying on his report and if he wrote the report the same time as he took the statement. The officer replies, "I wrote the report on the same day."

The defense tries to strike the evidence because the officer has no independent recollection. The prosecutor submits. The judge refuses to strike the evidence explaining that yes, the officer has no independent recollection but that the report was contemporaneous and therefore allowed into evidence as a hearsay exception.

I must admit that I sat there a little shocked; I'd never seen this exception used in this manner. After I finished my case I went down to the law library to look up this exception. The test for this exception is:

(1) The witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of [the event], (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.

Let's examine that for a minute. I think that in this case the exception fails the 4th test. Taken literally, we already know that the officer cannot remember the statement and therefore cannot vouch for the accuracy of the written memorandum. A truly horrendous interpretation of the 4th test could interpret it to mean that the officer has to testify that he files honest reports. As if an officer is going to say, "Well, I don't know judge. Every third report or so I liberally infuse the report with a series of lies." This renders the 4th test a farce and is pretty clearly not what it is meant to reach.

In fact, the 4th test is the most likely limiting factor for this exception. It would have to be a case by case analysis but there is a perfect example of what this exception is supposed to reach in Bailey v. Commonwealth, 20 Va. App. 236 (1995). In Bailey the clerk from a store could not recollect in court what items had been stolen from the store. However, he was able to read from the police report the items which had been stolen. He was able to do this because after the break-ins he went through and inventoried the items with the deputy and told him all the items which were missing. He clearly recalled having done this and could testify to its general truthfulness because he had the memory of having done the specific inventory.

Now, compare that to the evidence allowed in above. The officer could not testify to the general truthfulness because he did not remember asking the specific question or receiving the specific answer. Basically what I'm saying is that the defense wasn't attacking him because he couldn't remember whether the defendant confessed to having "a bag of weed" or "the bag of weed" in the car. In such a case, the general recollection of having asked the question and gotten the answer would allow a fallback onto this hearsay exception for the exact wording from the report. The defense was raising the hearsay exception because the officer didn't even have a general memory of a question or statement.

And then there's Crawford. This is about as crystal clear a violation of Crawford as I can think of. To be fair, this issue was not raised before the judge. However, as applied today in court, this is a heck of a dodge to get around the right to confront.

Applied properly, as per Bailey, this exception doesn't greatly infringe upon the right to confront. I can cross examine the clerk in that case as to why he inventoried certain items, whether the deputy was suggestive, how he knew items were missing, &cetera.

Applied as I saw it in court today there is no way to actually cross examine. The officer doesn't remember a question or answer. I can't ask him anything pertinent. At best, I can ask generalities such as how the officer usually writes his reports. That's not a confrontation on the pertinent issue.

Now that I've lit into the trial judge's decision, let me say that I am impressed that the judge actually stated the reason for his decision. I disagree with it and I'm a little perturbed that the judge raised it and not the prosecutor (who was a very competent prosecutor - not someone who needs help from the judge). Still, any judge who states the reasons for his rulings is someone who should be complimented for it.

[addendum] Looking back over the 4 part test, I'm not sure the officer passes the first part of the test either. He wouldn't seem to have first hand knowledge of the possession.

Dukes of Hazard

A comment about the upcoming movie:

They look like clients (and let's face it the Dukes would be Frequent Flyers).

I am really looking forward to this movie.

This has got to be frustrating for the prosecutor. He tries the entire case and gets his conviction. Then, on the first day of the sentencing hearing a juror breaks the law and taints the death sentence.

Notorious B.I.G.

The wrongful death case for the murder of Notorious B.I.G. mistries because the judge believes the police aren't being truthful.

A judge lays out a disaster in progress in the Boston indigent defense system.

via CarPundit

Let the melee begin. John G. Roberts Jr. is announced for Justice.

From a comment on this post:

"In big crime cases there seems to be a lot of prep and discovery done. Why's that?"

This was after I had commented about the limited discovery in Virginia.

First, let me say that in many - if not most cases - the only things which could be discoverable are the police report and witness statements. Some jurisdictions give these over (and still win their cases); other jurisdictions refuse. The law and Rules in Virginia allow a prosecutor to deny these to me. It's dumb and things would run a lot smoother if the law required them to be handed over but it's the way things are here.

In big cases there is more to discover. Rule 3A:11 of the Supreme Court of Virginia requires the exchange of reports (ie. ballistic tests, handwriting analyses, etc.). In lesser cases there isn't any of this (except the ubiquitous lab analysis showing the residue was in fact cocaine). The police and prosecutor's office just are not going to pour that kind of money into your client's bad check case. However, in murders, rapes, bank robberies, etc. the money will be spent; these reports will be available.

Furthermore, I think that in more important cases competent prosecutors will give far more evidence then required because of the seriousness of the case. They do this because getting a conviction to stick is more important than playing games. They know that if they convict my client appeals will follow and every moment of the case will be reviewed from top to bottom and it cannot be good for an elected official if a murder conviction is overturned (and, yes, it does happen - even in Virginia). The desire to make sure a serious case is handled correctly can also motivate the judge to make sure that discovery is broader than usual.

"I've heard it said you should never ask a question in cross you don't know the answer to. I guess that's not always feasible, eh?"

No, it's not always feasible to know the answer to a question before asking it. However, I find that most of the time police officers are willing to talk before trial and between what the officer says and what your client says you can usually have a pretty good idea what questions are the ones you should ask.

Important Practice Point: Do Not ask that Perry Mason moment question of your client's ex-girlfriend. She will lie. She is emotionally committed to getting your client thrown in jail. She is also angry with your client because he dumped her for that *%^&^%. She will lie. I know the question is tempting to ask because if she gives the honest answer your client should be cleared. Leave the doubt in the air, don't give her a chance to tell some tale. A failure to prove can be potent (if used properly); a lie from the woman on the stand can be devastating.