30 November 2005
Fun & Games with Habeas
My vacation was supposed to start Wednesday afternoon, right after I continued a case on the 1 p.m. docket. The plan was to take a week, travel to Kentucky to hit some old stomping grounds and touch base with some folks and then go to Cincinnatti for my brother's confirmation (on Tuesday night; Who ever heard of having confirmation on a Tuesday?). Anyway, Mom told me about this about a week ago and I've been trying to get things squared away since. Luckily, the end of this week was already clear so I could extend the trip for 7 days. I don't dare go past 7 days because I have a few petitions to the Court of Appeals and at least two of them are cases in which the trial court should be overturned. Experience teaches me that this means my rejection slip from single judge of the Court of Appeals will take longer to get mailed to me and be thicker. From the date on the rejection slip I have 10 days to email a single page .pdf to the court stating the reason it's wrong and demanding to tell a 3 judge panel why the petition should actually be scheduled for argument. In that circumstance 7 days is the most I can risk away from my P.O. box.
Of course, there are still a ton of things that need to be squared away. I'd set aside Tuesday afternoon to deal with a bunch of it and planned to wrap up the rest this morning.I'll let ya'll pick which of the following fits best:
Sure enough, a former client has filed a habeas petition against me, To make it worse, the AG office mailed it to an old address (it got forwarded) so it's getting to me late. I get to spend my afternoon up to about 8 p.m. putting together an answer and am thus thrown back at least a day for the start of vacation. Wonderful.
Anyway, the habeas is put together better than most I've seen. The writing is clear and it even includes copies of the case law and secondary sources Petitioner is relying on. And, for all its ill timedness, I can't blame Petitioner for taking her shot. Still, she did mange to irk me with some parts.
The primary complaint is that I was ineffective because I neither asserted the single larceny doctrine nor informed her about it prior to her guilty plea. This is a doctrine under Virginia law which says if you steal a key ring the prosecution cannot charge you with larceny for each key on the ring - only one larceny for the entire ring; the important factors to this limitation are that it all happens in the same time and place. Petitioner was extradited from Wyoming to face three charges: petit larceny (dad's wallet) and two charges of credit card theft (all from dad's wallet); there was never any doubt as to the facts of the case. The prosecutor dropped the petit larceny and Petitioner pled guilty to the two credit card thefts.
But wait, you think to yourself, that means Ken did screw up! Nope, while Petitioner has a good grasp on the basics of the single larceny doctrine she obviously didn't research its later development too well. Under Scott v. Commonwealth, precedent in Virginia holds that because the crime of felony credit card theft was created by the General Assembly it abrogates the common law rule that "stealing" a chose in action is not a crime. Going further it reasons that the creation of a brand new larceny by the General Assembly does not carry with it the single larceny doctrine restriction which applies to all the other larcenies. Not my favorite opinion, but it is binding precedent.
Anyway the strongest bolt in Petitioner's quiver pretty much shatters against Virginia's precedent. However, she made some other accusations which are basically downright strange.
The main reason she is upset and filing the habeas is that she got 10 years with 5 suspended on each charge (to run concurrently) and she got 3 more on a show cause from another jurisdiction. Her sentence was far above the guideline recommendation and I think it was extremely disproportionate. However, it was entirely legal. I have my theory as to how Petitioner got that much time, but I shan't air that right now. Of course, Petitioner has her own explanation for the disproportionate sentence: Ken Lammers sucks.
She makes the claim that I told her that a couple days before I had screwed up a case in front of the very same judge, that he was angry over that when he sentenced her, AND that I was shaking in fear during her sentencing hearing. Now, I don't remember talking about another case with her but it's always possible - sometimes I use general descriptions of other cases to explain how I think other actors in the court will act and react. The problem is, my calendar doesn't show me as having been before that judge for two months prior to Petitioner's sentencing date (which is fairly typical since I usually have one day per term) so there's no case I could have been talking about.
Gotta admit that my blood started to boil when I saw the accusation that I was shaking in fear. Shaking in fear??? You've got to be kidding me. How in the world do you answer that?
Then I realized that she might have merely misunderstood my trembling in anticipation of springing into battle, crushing the enemy, seeing him driven before me, and hearing the lamentation of the women. Or maybe I was just agitated because, under the terms of the guilty plea, I wasn't going to be able to join in mortal combat with the prosecutor. Or maybe there was a minor earthquake. Or maybe she made a bet with another inmate to see who could make the more ridiculous claim in her habeas petition.
Obviously, I don't know what the back story on that claim is. All I know is that it is incredibly insulting, Of course, the whole thing is a claim of ineffective assistance of counsel so I should be insulted by all of it. Still, this is the part which got under my skin.
I go now to gather and calm myself. Then I will continue prepping for my trip. I figure I can probably still get on the road by noon Thursday (God willing).
Of course, there are still a ton of things that need to be squared away. I'd set aside Tuesday afternoon to deal with a bunch of it and planned to wrap up the rest this morning.I'll let ya'll pick which of the following fits best:
1. No plan survives contact with the enemy.I open my P.O. box yesterday and there on the top is a manila envelope from the Attorney General's office - never a good sign.
2. The great god Murphy frowned upon me.
3. The best laid plans of mice and men often go awry.
Sure enough, a former client has filed a habeas petition against me, To make it worse, the AG office mailed it to an old address (it got forwarded) so it's getting to me late. I get to spend my afternoon up to about 8 p.m. putting together an answer and am thus thrown back at least a day for the start of vacation. Wonderful.
Anyway, the habeas is put together better than most I've seen. The writing is clear and it even includes copies of the case law and secondary sources Petitioner is relying on. And, for all its ill timedness, I can't blame Petitioner for taking her shot. Still, she did mange to irk me with some parts.
The primary complaint is that I was ineffective because I neither asserted the single larceny doctrine nor informed her about it prior to her guilty plea. This is a doctrine under Virginia law which says if you steal a key ring the prosecution cannot charge you with larceny for each key on the ring - only one larceny for the entire ring; the important factors to this limitation are that it all happens in the same time and place. Petitioner was extradited from Wyoming to face three charges: petit larceny (dad's wallet) and two charges of credit card theft (all from dad's wallet); there was never any doubt as to the facts of the case. The prosecutor dropped the petit larceny and Petitioner pled guilty to the two credit card thefts.
But wait, you think to yourself, that means Ken did screw up! Nope, while Petitioner has a good grasp on the basics of the single larceny doctrine she obviously didn't research its later development too well. Under Scott v. Commonwealth, precedent in Virginia holds that because the crime of felony credit card theft was created by the General Assembly it abrogates the common law rule that "stealing" a chose in action is not a crime. Going further it reasons that the creation of a brand new larceny by the General Assembly does not carry with it the single larceny doctrine restriction which applies to all the other larcenies. Not my favorite opinion, but it is binding precedent.
Anyway the strongest bolt in Petitioner's quiver pretty much shatters against Virginia's precedent. However, she made some other accusations which are basically downright strange.
The main reason she is upset and filing the habeas is that she got 10 years with 5 suspended on each charge (to run concurrently) and she got 3 more on a show cause from another jurisdiction. Her sentence was far above the guideline recommendation and I think it was extremely disproportionate. However, it was entirely legal. I have my theory as to how Petitioner got that much time, but I shan't air that right now. Of course, Petitioner has her own explanation for the disproportionate sentence: Ken Lammers sucks.
She makes the claim that I told her that a couple days before I had screwed up a case in front of the very same judge, that he was angry over that when he sentenced her, AND that I was shaking in fear during her sentencing hearing. Now, I don't remember talking about another case with her but it's always possible - sometimes I use general descriptions of other cases to explain how I think other actors in the court will act and react. The problem is, my calendar doesn't show me as having been before that judge for two months prior to Petitioner's sentencing date (which is fairly typical since I usually have one day per term) so there's no case I could have been talking about.
Gotta admit that my blood started to boil when I saw the accusation that I was shaking in fear. Shaking in fear??? You've got to be kidding me. How in the world do you answer that?
Then I realized that she might have merely misunderstood my trembling in anticipation of springing into battle, crushing the enemy, seeing him driven before me, and hearing the lamentation of the women. Or maybe I was just agitated because, under the terms of the guilty plea, I wasn't going to be able to join in mortal combat with the prosecutor. Or maybe there was a minor earthquake. Or maybe she made a bet with another inmate to see who could make the more ridiculous claim in her habeas petition.
Obviously, I don't know what the back story on that claim is. All I know is that it is incredibly insulting, Of course, the whole thing is a claim of ineffective assistance of counsel so I should be insulted by all of it. Still, this is the part which got under my skin.
I go now to gather and calm myself. Then I will continue prepping for my trip. I figure I can probably still get on the road by noon Thursday (God willing).
Another Try...
I posted this item (with several others) on 11/26, but with the Thanksgiving holiday and several subsequent posts, it kind of slipped through the cracks. As a lowly 1L, I wanted opinions from "real lawyers" on the policy of this district attorney. Do you think that a No Plea Bargain policy is good for the system?
The state prosecutor in Shelby County, Tennessee added two more violent crimes to his list of violations that he won't make a plea deal for. District Attorney Bill Gibbons now won't negotiate on carjacking and attempted first-degree murder cases. Gibbons hasn't allowed deals in murder, rape and aggravated robbery cases since 1997. Here is his official website
The state prosecutor in Shelby County, Tennessee added two more violent crimes to his list of violations that he won't make a plea deal for. District Attorney Bill Gibbons now won't negotiate on carjacking and attempted first-degree murder cases. Gibbons hasn't allowed deals in murder, rape and aggravated robbery cases since 1997. Here is his official website
29 November 2005
New LexCast
Episode 14 - Moore v. Commonwealth: Can an officer who cannot perform a search without violating the 4th Amendment circumvent the constitution by making an illegal arrest?
Listen to the to the audiocast by clicking play on the player (sorry, no video this week).
Listen to the to the audiocast by clicking play on the player (sorry, no video this week).
28 November 2005
In the News...
Better Late Than Never
Man convicted on DNA evidence for 1973 rape gets up to 46 years in prison."A woman's testimony was not sufficient in 1973" to convict a rapist.
“Good Kid”
An 18 year old Chicago man was arrested after allegedly kidnapping two young children to perform a satanic ritual. The suspect’s grandfather, called the accusations "ridiculous", saying that his grandson was a "good kid."
Sex Offenders in the Wind
Dozens, possibly hundreds, of registered sex offenders remain unaccounted for in Mississippi and Louisiana. Authorities say most are likely still displaced by Hurricane Katrina.
Extreme Pro Bono
Oklahoma attorneys who represent death-row inmates are warning they'll refuse to take some cases unless an appeals court intervenes. The state doesn't pay attorneys for some legal work included in representing indigent inmates awaiting execution. Attorneys could go uncompensated for representing inmates in clemency hearings and 11th-hour court proceedings.
Man convicted on DNA evidence for 1973 rape gets up to 46 years in prison."A woman's testimony was not sufficient in 1973" to convict a rapist.
“Good Kid”
An 18 year old Chicago man was arrested after allegedly kidnapping two young children to perform a satanic ritual. The suspect’s grandfather, called the accusations "ridiculous", saying that his grandson was a "good kid."
Sex Offenders in the Wind
Dozens, possibly hundreds, of registered sex offenders remain unaccounted for in Mississippi and Louisiana. Authorities say most are likely still displaced by Hurricane Katrina.
Extreme Pro Bono
Oklahoma attorneys who represent death-row inmates are warning they'll refuse to take some cases unless an appeals court intervenes. The state doesn't pay attorneys for some legal work included in representing indigent inmates awaiting execution. Attorneys could go uncompensated for representing inmates in clemency hearings and 11th-hour court proceedings.
27 November 2005
SexLaw - Consent
Wales - A young woman gets drunk and a friend arranges for her to have a security guard escort her home. Two days later she reported to a university counselor that "something" had happened. Police were called in and the guard admitted to consensual sex in a hallway near her apartment. She doesn't remember but claims that if it were consensual she would have led the man into her nearby apartment.
As you might imagine, every politician and and wag who sees any possibility of making hay with this has come forward.
I get a few hits here daily from the U.K. Anybody able to explain what the actual state of the law is?
[On cross examination] she admitted "emitting a pleasurable groaning sound" at one stage, but added: "I was unconscious. I stopped groaning as soon as I knew something was happening."The prosecutor folded his case admitting "drunken consent is still consent" and the judge directed the jury to return a not guilty verdict.
As you might imagine, every politician and and wag who sees any possibility of making hay with this has come forward.
Labour MP Vera Baird, said the judge was incorrect.And while that's pretty obviously a politician making hay, some have laid out the case more eloquently.
"He is wrong, there is no doubt about that, it is a dreadful error. The judge is utterly and totally wrong, he needs to be spoken to and sent on some re-training. This is a dreadful outcome because women will now think they cannot have a single glass of wine - I think this is going to put women off coming forward again and again."
Until the 2003 Act came into force, a man would normally be acquitted if he could show that he "honestly" believed that consent had been given, even if a woman claimed that she had protested.All-in-all, a disturbing shift from the prosecution proving guilt to the prosecution proving opportunity and then forcing the defense to prove innocence. However, I am not an expert on the laws of the U.K. so I cannot comment on whether that's an accurate assessment of the law.
But this "honest belief" defence made juries reluctant to find defendants guilty in date rape cases and the conviction rate fell from one in four reported rapes in 1985 to one in 14 today.
The Government thought that more guilty verdicts would be returned if the consent provision was tightened, so it replaced the old defence with a new test: if the prosecution could prove that there was reasonable room for uncertainty over whether consent was given - and the defendant did not take reasonable steps to ensure that it was - he would have committed a rape.
Once the prosecution has proved that sexual activity took place in one of the precluded circumstances, it would be for the defendant, on the balance of probabilities, to persuade a jury that consent had been given.
I get a few hits here daily from the U.K. Anybody able to explain what the actual state of the law is?
SexLaw - The States
1) Virginia may not be able to criminalize sodomy after Lawrence, but it's sure going to hold onto its ability to criminalize solicitation to commit sodomy.
2) Triple Jeopardy - The New York Legislature refuses to pass "civil confinement" laws so that NY can commit sanctioned double jeopardy. The governor takes it upon himself to start acting like the law is there anyway. A judge says "No" and orders evaluations for mental illness and release if it is not found. The first guy is set to be released from the mental hospital. So what happens? He is transferred directly back to prison.
Note, this guy has served all of his time and, under the judge's order, two court-appointed psychiatrists have found him not mentally ill or a danger to himself or to society. Welcome to the USsr!
2) Triple Jeopardy - The New York Legislature refuses to pass "civil confinement" laws so that NY can commit sanctioned double jeopardy. The governor takes it upon himself to start acting like the law is there anyway. A judge says "No" and orders evaluations for mental illness and release if it is not found. The first guy is set to be released from the mental hospital. So what happens? He is transferred directly back to prison.
Note, this guy has served all of his time and, under the judge's order, two court-appointed psychiatrists have found him not mentally ill or a danger to himself or to society. Welcome to the USsr!
SexLaw - International
1) When a Filipina moves to recant a rape charge high level politicians start talking about charging her with perjury .
2) In India a 75 year old man was found guilty of raping his own daughter. The trial court gave him five years. On appeal, the trial court was reversed. On further appeal, the appellate court was reversed and the sentence was raised to life in prison. Now he's back in court with an affidavit from his daughter stating that it never happened - she was induced by her mother to make the claim.
3) 26 years later South African law enforcement figures out who a rapist is.
4) "A Delhi court has sentenced a man to rigorous imprisonment of four years for attempting to rape a 13-year-old girl." [Can anyone tell me what "rigorous imprisonment" entails?]
5) A Portugese soccer player is cleared of rape charges in London.
2) In India a 75 year old man was found guilty of raping his own daughter. The trial court gave him five years. On appeal, the trial court was reversed. On further appeal, the appellate court was reversed and the sentence was raised to life in prison. Now he's back in court with an affidavit from his daughter stating that it never happened - she was induced by her mother to make the claim.
3) 26 years later South African law enforcement figures out who a rapist is.
4) "A Delhi court has sentenced a man to rigorous imprisonment of four years for attempting to rape a 13-year-old girl." [Can anyone tell me what "rigorous imprisonment" entails?]
5) A Portugese soccer player is cleared of rape charges in London.
26 November 2005
DeathLaw - Singapore
One of the biggest death penalty cases out there right now is in Singapore. An Australian citizen, Van Tuong Nguyen, tried to smuggle heroin into Singapore. As was driven home to the U.S. in 1994, Singapore punishes severely and is not dissuaded when foreign governments try to intervene on behalf of their citizens. Nguyen was caught and sentenced to death.
Although efforts are still being made to persuade Singapore to choose a different path, Australia "has ruled out an appeal to the International Court of Justice, believing that would fail." Some are basically writing it all off to "when in Rome . . ." The Catholic Bishops from Australia have written Singapore's Prime Minister to ask for clemency. And opposition members are blaming the fact that the Australian will be killed on the fact that Singapore isn't a democracy (because, as we all know, democracy was the reason we got rid of it here in the States).
And, finally, the situation has cost Singapore's hangman his job. Australian press reports ran pictures revealing who he was and the government removed him. He regrets the fact he will no longer be earning his $400 per execution.
Although efforts are still being made to persuade Singapore to choose a different path, Australia "has ruled out an appeal to the International Court of Justice, believing that would fail." Some are basically writing it all off to "when in Rome . . ." The Catholic Bishops from Australia have written Singapore's Prime Minister to ask for clemency. And opposition members are blaming the fact that the Australian will be killed on the fact that Singapore isn't a democracy (because, as we all know, democracy was the reason we got rid of it here in the States).
And, finally, the situation has cost Singapore's hangman his job. Australian press reports ran pictures revealing who he was and the government removed him. He regrets the fact he will no longer be earning his $400 per execution.
At a Glance...
1) When Lawyers Go Bad
A Maryland lawyer was sentenced to 20 years in prison for plotting to murder her former husband.
2) When Judges Go Bad
A Huston, Texas judge must serve probation for two years after being found guilty of using her dead mother's name to apply for a handicapped parking permit.
3) When Governors Go Bad
A portrait of former Connecticut governor John Rowland is now hanging at the State Library. The painting was hung Wednesday with no ceremony or fanfare. Rowland is serving a yearlong prison sentence in Pennsylvania for corruption.
4) Can Prosecutor’s “No Deal” Policy Be Bad?
The state prosecutor in Shelby County, Tennessee added two more violent crimes to his list of violations that he won't make a plea deal for. District Attorney Bill Gibbons now won't negotiate on carjacking and attempted first-degree murder cases. Gibbons hasn't allowed deals in murder, rape and aggravated robbery cases since 1997. Here is his official website.
A Maryland lawyer was sentenced to 20 years in prison for plotting to murder her former husband.
2) When Judges Go Bad
A Huston, Texas judge must serve probation for two years after being found guilty of using her dead mother's name to apply for a handicapped parking permit.
3) When Governors Go Bad
A portrait of former Connecticut governor John Rowland is now hanging at the State Library. The painting was hung Wednesday with no ceremony or fanfare. Rowland is serving a yearlong prison sentence in Pennsylvania for corruption.
4) Can Prosecutor’s “No Deal” Policy Be Bad?
The state prosecutor in Shelby County, Tennessee added two more violent crimes to his list of violations that he won't make a plea deal for. District Attorney Bill Gibbons now won't negotiate on carjacking and attempted first-degree murder cases. Gibbons hasn't allowed deals in murder, rape and aggravated robbery cases since 1997. Here is his official website.
DeathLaw - The States
1) Perception (from Taipei) - 997 executions later, "the US still loves the death penalty."
2) Wisconsin hasn't had the death penalty for 152 years and, despite efforts to put the punishment back in place for crimes with DNA evidence, it looks like it still won't. Even the State AG won't support it.
3) The Massachusetts House rejected the death penalty almost 2-1.
4) "In the past 23 years, since New Jersey reinstated the death penalty, no inmate has been executed. Of the 60 death verdicts returned by juries, most were replaced with life terms. Ten people are on death row today.
But there has been one clear result of New Jersey's death penalty: The state's taxpayers have lost out on $253 million."
5) Pittsburg - "As for fairness, ask yourself this: If I were charged with murder, would I rather be poor and innocent or rich and guilty?"
6) A $5,000 reduction in bond is taken by the lawyer as partial payment of fees. The lawyer doesn't hire an expert to rebut the DUI breath test. The attorney was incompetent and the defendant gets a new trial.
7) Kill a sex offender in prison - get a pass on capital charges.
2) Wisconsin hasn't had the death penalty for 152 years and, despite efforts to put the punishment back in place for crimes with DNA evidence, it looks like it still won't. Even the State AG won't support it.
3) The Massachusetts House rejected the death penalty almost 2-1.
4) "In the past 23 years, since New Jersey reinstated the death penalty, no inmate has been executed. Of the 60 death verdicts returned by juries, most were replaced with life terms. Ten people are on death row today.
But there has been one clear result of New Jersey's death penalty: The state's taxpayers have lost out on $253 million."
5) Pittsburg - "As for fairness, ask yourself this: If I were charged with murder, would I rather be poor and innocent or rich and guilty?"
6) A $5,000 reduction in bond is taken by the lawyer as partial payment of fees. The lawyer doesn't hire an expert to rebut the DUI breath test. The attorney was incompetent and the defendant gets a new trial.
7) Kill a sex offender in prison - get a pass on capital charges.
DeathLaw - Religion
1) Two men wait to see if a Sharia court declares them gay and orders them stoned to death.
2) In Australia, Catholics are urged to take up their faith and oppose the death penalty because "opposition to the death penalty is a part of the Christian witness to the Gospel of life."
3) From Rome, the Catholic Community of Sant'Egidio is organizing and coordinating opposition to the death penalty in 320 cities: "Whoever wants to be there will try to think of how it is possible now to have a higher level of justice, justice without revenge and a restorative justice than never denies life."
2) In Australia, Catholics are urged to take up their faith and oppose the death penalty because "opposition to the death penalty is a part of the Christian witness to the Gospel of life."
3) From Rome, the Catholic Community of Sant'Egidio is organizing and coordinating opposition to the death penalty in 320 cities: "Whoever wants to be there will try to think of how it is possible now to have a higher level of justice, justice without revenge and a restorative justice than never denies life."
DeathLaw
Around the World
1) China - Unburdened with the mandate against double jeopardy, a Chinese Appellate Court increases a penalty from life to death because the defendant went to the press first, the murder was committed in cold blood, and the defendant showed no intention of compemnsating the victim's family.
2) Taiwan - Not only were the men who raped, killed, and canabalized an insurance agent sentenced to death, they lost their right to vote as well.
2) Taiwan - Not only were the men who raped, killed, and canabalized an insurance agent sentenced to death, they lost their right to vote as well.
25 November 2005
1,000 Feet as a Crow Flies
The decision referenced by Orin doesn't bother me so much. The measurement in a straight line from the school to the location of a drug dealer makes sense. You are trying to create a dealer-free zone because kids congregate on or near campus and it's a natural place to prey upon them.
When I was in Junior High School (7-9th grade) there was a road that was barricaded off behind both the Junior High and the High School; it went about 100 feet further to the High School parking lot and I'm sure it was blocked off because the local suburbanites complained). It was the quickest way for those of us who walked to get to school and the area around that gate got clogged every morning with kids who hung out there - mostly the kids who viewed themselves as "cool" (though many of us just thought of them as the "dopers") and there was usually a funny odor in the air as I walked through them (I just wanted to get to school). These guys would pull up in a car out on the street and deal pretty brazenly. Then, in the 8th grade I was sitting in my homeroom about 5 minutes before school started and a kid, whom I remember as a big time doper, came dashing in the door. The police had raided the area, coming out of houses at the end of the street and arresting a bunch of kids and catching the guys who were dealing from their car. Doper swore that cops had even come down out of this huge tree which was out there. After that nobody hung out at the end of the street anymore and, I think the psychic shock caused the class years around mine to have less drug penetration then normal (beer & whiskey, on the other hand . . .).
Anyway, the dealers' car was parked on the street. As you walked to the High School, I'm pretty sure it was over 1,000 feet from the buildings, even as a crow flies. However, there was one row of houses between where they parked and the Junior High School. Walking around these houses probably put them over 1,000 feet from the school. As the crow flies, I doubt it was 500 feet. As I think back on it, there is no doubt in my mind that they were preying on the kids as they walked in to school. I've got no problems with the 1,000 foot safety zone.
Next time in the Strange Things in Ken's Life Theatre: Someday I'll have to tell ya'll about the day I was approached and asked to deal.
When I was in Junior High School (7-9th grade) there was a road that was barricaded off behind both the Junior High and the High School; it went about 100 feet further to the High School parking lot and I'm sure it was blocked off because the local suburbanites complained). It was the quickest way for those of us who walked to get to school and the area around that gate got clogged every morning with kids who hung out there - mostly the kids who viewed themselves as "cool" (though many of us just thought of them as the "dopers") and there was usually a funny odor in the air as I walked through them (I just wanted to get to school). These guys would pull up in a car out on the street and deal pretty brazenly. Then, in the 8th grade I was sitting in my homeroom about 5 minutes before school started and a kid, whom I remember as a big time doper, came dashing in the door. The police had raided the area, coming out of houses at the end of the street and arresting a bunch of kids and catching the guys who were dealing from their car. Doper swore that cops had even come down out of this huge tree which was out there. After that nobody hung out at the end of the street anymore and, I think the psychic shock caused the class years around mine to have less drug penetration then normal (beer & whiskey, on the other hand . . .).
Anyway, the dealers' car was parked on the street. As you walked to the High School, I'm pretty sure it was over 1,000 feet from the buildings, even as a crow flies. However, there was one row of houses between where they parked and the Junior High School. Walking around these houses probably put them over 1,000 feet from the school. As the crow flies, I doubt it was 500 feet. As I think back on it, there is no doubt in my mind that they were preying on the kids as they walked in to school. I've got no problems with the 1,000 foot safety zone.
Next time in the Strange Things in Ken's Life Theatre: Someday I'll have to tell ya'll about the day I was approached and asked to deal.
Oh Goody!
More Ways to Screw With Airport Travel
Over at MoBuzz, Miss Stenquist tells us about a verbal lie detector which an Israeli is trying to sell to airports (2d story). And then she goes on to besmirch those of you who got up at 5 a.m. this morning to be the very first person into K-Mart - to make sure you got Uncle Harry the Talking Bass before they ran out.
1st Amendment Anyone?
In Florida a lawyer cannot use pit bulls in advertising. So says the government in the body of the Florida Supreme Court.
Doesn't this sound real familiar?
(for those of us in the States)
The EU is federalizing certain crimes, but it's not a power grab:
Oh, well, it'll come to me sooner or later.
EU officials insist that new powers to set criminal punishments for breaches of European law will remain minimal with a "strict test of necessity" applied at all times.Hmmm . . . What other federal government can I think of that has taken (originally non-federal) criminal powers unto itself? It's on the tip of my tongue . . .
"We do not want to have criminal measures everywhere. We do not want to criminalise Community law," said an official.
Oh, well, it'll come to me sooner or later.
23 November 2005
Vacatur
Vacatur: an order of a court vacating a legal proceeding. Webster's Third New International, 1972.
Why quote from Webster instead of Black? Because the three legal dictionaries I have in my office don't have this in them.
Anyway over at Volokh and Balkinization there is a discussion of the doctrine behind this. The background is pretty simple. The government is holding someone without charging him with anything. The person files a habeas. The government has purposefully held the individual in possibly the only jurisdiction which would rule in its favor. The courts in that jurisdiction do rule in the government's favor. The person appeals to the Supreme Court where the outcome is far from certain. At this point the government files charges against the person in order to moot the case before the Supreme Court and keep favorable precedent in place.
The argument is that in the case of one party purposefully abusing the system, unilaterally, and causing a case to become moot the underlying precedent can also be made moot.
I'm not an expert in this, and I haven't been following the case, but here are the issues which stick out in my mind:
1) Mootness - As we all know, mootness is not an absolute. If it were there would be absolutely no precedent regarding abortion because no one gets from a trial court, through the appellate courts and to the Supreme Court in 9 months. Now, I don't know what nook or cranny a case wherein one party purposefully set out to void the Court's jurisdiction could fit into but I suspect that a Court not particularly thrilled with being manipulated might bite on it. And, if it did the whole trick might backfire on the government because at this point there is no pressure on the Court to find in the government's favor. If he's charged then what difference does it make if a habeas is granted setting precedent against holding someone without a charge?
2) Applying Vacatur -
As well, does it really accomplish anything? The next guy who's being held in the government friendly jurisdiction is going to get the same treatment. When his case reaches the Circuit Court it may not say it's following precedent but you can pretty much figure they're going to pull out the other decision from an old computer file and just change the names.
If this were a less prominent case so that all the judges in the Circuit didn't already know the result vacatur might make more sense. Perhaps, if there are no more people being held without benefit of the courts for 50 years or so everybody will forget the current case. However, the case is too prominent and I fear this is an issue we will revisit sooner rather than later.
Why quote from Webster instead of Black? Because the three legal dictionaries I have in my office don't have this in them.
Anyway over at Volokh and Balkinization there is a discussion of the doctrine behind this. The background is pretty simple. The government is holding someone without charging him with anything. The person files a habeas. The government has purposefully held the individual in possibly the only jurisdiction which would rule in its favor. The courts in that jurisdiction do rule in the government's favor. The person appeals to the Supreme Court where the outcome is far from certain. At this point the government files charges against the person in order to moot the case before the Supreme Court and keep favorable precedent in place.
The argument is that in the case of one party purposefully abusing the system, unilaterally, and causing a case to become moot the underlying precedent can also be made moot.
I'm not an expert in this, and I haven't been following the case, but here are the issues which stick out in my mind:
1) Mootness - As we all know, mootness is not an absolute. If it were there would be absolutely no precedent regarding abortion because no one gets from a trial court, through the appellate courts and to the Supreme Court in 9 months. Now, I don't know what nook or cranny a case wherein one party purposefully set out to void the Court's jurisdiction could fit into but I suspect that a Court not particularly thrilled with being manipulated might bite on it. And, if it did the whole trick might backfire on the government because at this point there is no pressure on the Court to find in the government's favor. If he's charged then what difference does it make if a habeas is granted setting precedent against holding someone without a charge?
2) Applying Vacatur -
The parties in the present case agree that vacatur must be decreed for those judgments whose review is, in the words of Munsingwear, "'prevented through happenstance'"--that is to say, where a controversy presented for review has "become moot due to circumstances unattributable to any of the parties." Karcher v. May,484 U.S. 72, 82, 83, 98 L. Ed. 2d 327, 108 S. Ct. 388 (1987). They also agree that vacatur must be granted where mootness results from the unilateral action of the party who prevailed in the lower court.The appeal above was argued specifically as to Vacatur caused by settlement and denied. However, the dicta above would seem to strongly favor use of vacatur in a case such as this if, and this is a huge IF, you could get the court to accept cert. solely and specifically vacatur. Maybe the Court will be upset enough with the manipulation to grant cert. but I'm not holding my breath.
U. S. BANCORP MORTGAGE COMPANY v. BONNER MALL PARTNERSHIP, No. 93-714
(I'd like to take credit for having found this but it's in the arguments on both blawgs).
As well, does it really accomplish anything? The next guy who's being held in the government friendly jurisdiction is going to get the same treatment. When his case reaches the Circuit Court it may not say it's following precedent but you can pretty much figure they're going to pull out the other decision from an old computer file and just change the names.
If this were a less prominent case so that all the judges in the Circuit didn't already know the result vacatur might make more sense. Perhaps, if there are no more people being held without benefit of the courts for 50 years or so everybody will forget the current case. However, the case is too prominent and I fear this is an issue we will revisit sooner rather than later.
The Silly & Strange
1) If you're hiding from police a deep freeze which locks behind you might not be a good locale.
2) It may not track exactly, but anyone who walks past a parked police car into a gun store to rob it deserves his Darwin.
3) The dreaded underwater bike riding bandits.
2) It may not track exactly, but anyone who walks past a parked police car into a gun store to rob it deserves his Darwin.
3) The dreaded underwater bike riding bandits.
21 November 2005
Doughnuts Not Pistols
Decision making by committee gives us an officer firing a doughnut rather than a pistol (I kid you not).
via the Conspiracy
via the Conspiracy
New LexCast: In Memory of Professor Groot
The latest LexCast is up both in video and audio form. It's a tribute to Professor Roger Groot - the Professor which every single graduate of Washington & Lee remembers with fondness and appreciation. Men such as he are rarity and he will be sorely missed.
MoBuzz Crimlaw
Over at MoBuzzTV, Karina Stenquist's first two stories are about law matters. First, we learn of the U.K.'s plan to put a camera every 400 meters - on every road - to monitor and keep track of everyone's movements for at least two years. Then she warns us about transvestite, Thai, criminal gangs. And the final story isn't about law or crime - it's just weird.
The Infallalibility of Dogs
Using a dog which is 0 for 4 to justify strip searching people who have been pulled over.
Thanks to NS for the tip.
Thanks to NS for the tip.
19 November 2005
Weekend Review...
1) Claims of attack at memorial false. U.S. Park Police this week said they want to assure the public that the memorials and monuments in Washington are safe, after a man who was stabbed stumbled onto the grounds of the Jefferson Memorial Wednesday night. The police now say that the man actually tried to commit suicide.
2) What? Did you lose a bet? Three University of Texas business students are free on bond after being accused of cutting down a century-old tree to settle a bet after a basketball game.
3) Whatever happened to just putting a frog in the teacher's desk? Police in Hampton, Virginia charged a second eighth-grade student in a plot to poison their social studies teacher. The 13-year-old boy is believed to have helped in one of three attempts to sicken the man by placing a cleaning agent in his coffee. Police discovered the plot Nov. 7 after another student told them about it. The teacher had reported vomiting a few days before the discovery.
4) District Attorney gets taken for a ride by the internet. A Philadelphia District Attorney has filed a federal lawsuit against a dealer who sold him a 1969 Corvette over the Internet. His lawsuit cites 40 significant defects in the car. He says it was advertised as a great-looking vehicle that gets a lot of attention.
2) What? Did you lose a bet? Three University of Texas business students are free on bond after being accused of cutting down a century-old tree to settle a bet after a basketball game.
3) Whatever happened to just putting a frog in the teacher's desk? Police in Hampton, Virginia charged a second eighth-grade student in a plot to poison their social studies teacher. The 13-year-old boy is believed to have helped in one of three attempts to sicken the man by placing a cleaning agent in his coffee. Police discovered the plot Nov. 7 after another student told them about it. The teacher had reported vomiting a few days before the discovery.
4) District Attorney gets taken for a ride by the internet. A Philadelphia District Attorney has filed a federal lawsuit against a dealer who sold him a 1969 Corvette over the Internet. His lawsuit cites 40 significant defects in the car. He says it was advertised as a great-looking vehicle that gets a lot of attention.
18 November 2005
Imputed Asportation
Just because you tricked someone else into taking the property away doesn't mean there was no asportation in your case.
Cigarette Not Probable Cause
In Virginia it's not probable cause when an officer approaches a car and finds someone asleep in it with a half-burned, hand rolled cigarette in his hand (and yes, it was a tobacco cigarette).
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