The New Look

Here's your chance to comment on the new look for the favicon and the blawg in general. For comparison, here's Wayback's list of prior versions of the blawg. If you don't like the new look I'd appreciate if you'd tell me which one you preferred.

Apparently, I am the World's Worst Lawyer

I already felt pretty crummy about a jury trial I had over an allegation that my client had cocaine in a prison. Client found guilty and got the max from the jury.

Then I find out that the local paper featured the trial on its front page. I avoided that paper that week. Of course the only way to see it now is in the archives (which are non-linkable and don't have anything more than the first couple paragraphs).

Here's what's online:

Inmate's cocaine possession lands him 20 more years

By Darrell Elder
Staff Writer
Powhatan Today

Tuesday, a jury of 12 Powhatan residents added 10 years to a Powhatan Correctional Center inmate's current prison sentence.

[John Smith] pleaded not guilty to possessing cocaine on July 10, 2005. Commonwealth's Attorney [Mike Jones] told the jury during his opening statement that the case is a simple one. Defense attorney, Ken Lammers Jr. told the jury during his opening statement that he does not have a crystal ball. He added that the four defense witnesses are also prison inmates therefore they will not be as eloquent as the corrections officers, who will testify for the Commonwealth.

Ummm . . . I know I came out of that trial feeling like a pretty cruddy lawyer, but I'm pretty sure the jury didn't sentence my client to twice the max (the max being ten years). And I know the crystal ball semi-quote makes me seem like an idiot, but I didn't just stand there and say I don't have a crystal ball. There were actually other lines around that which made it make sense - at least I thought so. It wasn't even a major part of my opening statement. I also didn't say that my client's witnesses would be less eloquent because they were inmates. I said they wouldn't have written reports to review and would not have been able compare notes like the guards could and therefore would have more variance in there versions of the events.

AAaarrgggg!

Wonderful

My county supervisor pled guilty to two charges of misdemeanor sexual battery (reduced from felonies) and got community service. He doesn't plan to resign his political position but he's lost his teaching job.

No Misdemeanor Prosecutor for Appalachia

The Commonwealth Attorney for Wise County has stopped being the misdemeanor prosecutor for the town of Appalachia.

Because he doesn't have the time to do it anymore . . .

Yeah, that's the reason. Really. No kidding.

Now that's an interesting county.

I Blame Steve

Steve, who on the odd occasions blogs hereabouts, got an i-pod as a gift from his better half. I've never seriously thought of getting an i-pod or one of its competitors and I really didn't think about buying one when I saw Steve's. Then came yesterday. I was over by the mall and stopped in at Circuit City. I went in with the intention of buying a new digital camera because my old one is screwing up about half the pictures I take. However, the cameras I was interested in were all about $200 more than I was willing to spend.

As I am wont to do, I started wandering the store. After checking out TV's and computers I'm not going to be able to buy, I wandered past the MP3/hand-held video player section. I stopped to look and see all the gadgets and add-ons that I'm sure Steve has started buying for his i-pod. Still, I wasn't particularly interested in the Apple products.

What caught my eye was the $100 cheaper Creative Zen. For those of you who don't know, Creative has been trying hard to break Apple's near monopoly on MP3/video players. As the number two company often does, it has, IMHO, better products at cheaper prices. Creative's problem has been that it doesn't seem able to make its players as purty as them there i-pods. It also doesn't have the world's most successful distribution website exclusively for its product (i-tunes). Neither of these things matter to me all that much. The Creative Zen M is purty enough and I really don't need Apple to aggregate what I'm going to download to watch. So I got sucked in and bought one.

It's PC based, so it uses divx, xvid, and wmv instead of H264 and m4v. It's a little hinky on the videos. WMV loads fine, but divx and xvids have to actually end in .avi to load up. That's annoying since a lot of places just use .xvid and you have to change the name of the file. It also claims to use mpeg-4, but after trying for a while I looked on line and found out that there are actually 3 different versions of mpeg-4 and the one Creative supports ain't in use anymore. That's annoying because the mpeg-4 capability was a pretty big selling point to me.

Still, most of my videos are in PC formats and they work beautifully. I loaded Blogging Heads, TWIT 28, Command-N, and a couple other videos on the Zen. They're impressive and nary a problem in playing them. The sound is also very good.

I like my new toy; still, it is proof that I should never, ever be allowed in Circuit City without someone to grab me by the arm and drag me out when something shiny catches my eye. And I never would have looked at it if Steve hadn't shown me his new toy. So, it's all Steve's fault. I wonder if I can get him to pay half?

Over at my favorite vidcast, MobuzzTV, Karina Stenquist is talking about things we need to keep an eye on here in the States: Breathalizer telephones and guns which can only be used if you know the code.


Y'know, I should probably feel guilty about posting something about Miss (Ms.?) Stenquist and Mobuzz. I get several hits a day from having reviewed Mobuzz and Ms. (Miss?) Stenquist a while back. I just keep picturing panting fan-boys trying to get their 5 minute fix of a cute, skinny, witty young woman and coming up with a blawg written by a short, round, old guy who writes about stodgy things like the law. I'm afraid this post might lead to even further misdirection.

Oh well, to quote my role model, BWA-HA-Ha-ha-ha-ha!!!!

Chinese CrimLaw

1) News hit the press that the Royal Canadian Mounted Police are cooperating and exchanging information with the Chinese in matters criminal.

2) In a story which is probably (hopefully) unrelated, a Canadian citizen who had been given asylum from China in Canada was caught in Uzbekistan trying to get his kids out of China. He is now being returned to China to be killed for illegal political activities.

3) Billions of dollars walk out the door of a Chinese government bank.

4) China kills 27 drug dealers to commemorate international anti-drug day, but it's not stopping the drug trade and its effects.

5) Finally, China is gearing up to keep kids from having access to the internet during their Summer break.

The problem with truly discretionary sentencing guidelines

For those of you who don't know, Virginia's sentencing guidelines are discretionary. Now, I don't mean discretionary in the federal sense where all the departures downward are rejected by the appeals courts and all the departures upward are rubber stamped. No, they are truly discretionary and the only time the judge has to answer for them is when she has to go back before the General Assembly every so many years, hat in hand, and ask for her job back.

Generally, I am content with this system. Departures are relatively rare. The one thing I notice is that I've never seen downward departures take more than 2 years off a recommended sentence while upward departures are almost universally massive.

Case in point: A car-jacker is recommended to get between 7-12 years in prison. It's a nasty crime and he definitely deserves the upper end of the guidelines - maybe even a departure upward by a few years (let's say up to 20 years). The judge allowed the prosecutor to put on evidence of a murder charge the defendant is facing, but which hasn't gone to trial yet. Then the judge says the magic words for the record: "I won't consider the evidence of the murder charge in sentencing." Gotta make sure that's in the record because otherwise there might not be sufficient cover for the appellate courts to say she didn't consider it. And why would there be concern that the appellate courts are going to need cover to uphold this sentence? Because the judge then departed upward 31 years.

Yeah, she never gave that murder charge a second thought.

Superman Returns: The Review

5 Second Review: It sucks.

30 Second Review: Superman has a child out of wedlock, abandons those who counted upon him, comes back and becomes a home wrecker, is a peeping tom, and is too stupid to realize that Lex Luthor will have kryptonite somewhere nearby when confronted by the Man of Steel. And the new uniform sucks.

2 minute review: The best scene in the entire movie is a special effects bonanza near the beginning when Superman saves a space shuttle and the plane which was carrying it after an EMP pulse causes a malfunction which fuses the two together and shoots them into space. It is an amazing scene. The bad guy with a chain gun and pistol scene is also good. Unfortunately, they're the only things worth seeing in the movie.

The plot by Lex Luthor, Superman's most dangerous, capable, and intelligent foe, is imbecilic. Still, it's not the battle between good and evil which we're supposed to focus on - we're supposed to focus on the relationship issues caused by his return. The biggest plot device of the movie is that Superman has just returned from a worthless and meaningless five year round trip to see Krypton's remains (we'll not ask how he survived all the kryptonite). The main point of the movie is what happens between him and Lois Lane.

Whoever wrote and/or directed this just doesn't get it. Superman, while not as much a Boy Scout as the Big Red Cheese (who, BTW, apparently has his own movie in the works), is supposed to be about Truth, Justice and all that is right in the world (I don't suppose we can say The American Way anymore). He is about inspiration of the masses and doing the right thing, even when it is hard. You don't try to make him more gritty and "real." He wears bright reds, blues, and yellows - not that horrendous dark blue and maroon thing they had him in. He would never try to break up a family - which he clearly attempts in the movie. I don't know who that guy on the screen was but he wasn't what I picture when I think of Superman. And, oh yeah, Superman wouldn't look like an underdevloped 17 year old kid either.

Don't waste your time and money. Stay home and watch episodes of Lois & Clark or Smallville or the old serials or Superman I & II.

Chad's Still Hiring

This position is still available in Wise. It's a beautiful area and the cost of living there is low enough that the pay for a Commonwealth Attorney is more substantial. As one guy I know put it: "When I left Wise and came to Central Virginia to take another prosecution job I earned more but had less money."

Title: DEPUTY COMMONWEALTH’S ATTORNEY
Firm: The Wise County/City of Norton Commonwealth’s Attorney’s office
Date Posted: 06/02/06
The Wise County/City of Norton Commonwealth’s Attorney’s office has one opening for a Deputy Commonwealth’s Attorney. Must be a member of the Virginia State Bar. Criminal prosecution or defense work is desired, but not a requirement. Responsibilities include extensive trial work in all courts in the prosecution of felony and misdemeanor cases. Send resume to Commonwealth’s Attorney, P.O. Box 69, Wise, VA 24293. Deadline for receipt of resumes is June 30, 2006. EOE.

"Police search for home invaders, arrest victim"

Ummm . . . Is that the way events are supposed to unfold?

Want to go to religious services in Brunswick CC?

Better be prepared to get strip searched afterwards.

Y'know, it's a rational policy, but they might want to consider moving the services inside the secure area so they can stop doing this.

No Evidence from Hopewell, Virginia has a Valid Chain of Evidence Going Back Years

Apparently, the police aren't cooperating with the prosecutor's office:

"This hearing is for Ms. Martin to examine the police officers because the commonwealth doesn't have the information to give."

And what a hearing it was. Under examination by defense attorney Mary Martin, Jean Cameron, the former property and evidence technician for Hopewell, testified that there were problems inventorying the items under the control of the Property and Evidence office, that as many as six people had keys, that the door had been found open several times, that evidence had been stored improperly in the accessible outer office, civilians have been know to roam the police station, and that she once found the juvenile son of the chief of police playing in the evidence storage area.

To quote the judge:

"Quite frankly, I don't know what exculpatory evidence could take the taint away from that room."

Do you realize what it takes to get a Virginia judge, who must eventually face the Virginia General Assembly and humbly ask to be allowed to keep his job, to say somwething like that? Every conviction for years will come into play and the Court of Appeals will have to spend whole minutes thinking of reasons for denying petitions of actual innocence. All the current cases which rely on any type of evidence are up a certain creek with no paddle for miles.

Articles here & here.

Goofy Crime

1) If you are robbing a store in the middle of the night, and the owner returns, you may not want to hide under the owner's bed, drink some beer, and start snoring.

2) Why'd the robbery fail? Probably because the clerk was rolling on the floor laughing at the diaper the robber was wearing on his head.

3) If the last prosecutor asked the judge to dismiss charges as a favor for his secretary, Mr. New Prosecutor cannot revive them.

4) What kind of jerk steals a lady's wedding dress?

Melissa Hooper's bridal gown - shown in the photograph she's holding - was stolen recently from her car in Newport News. Her wedding veil, in the bag in the background , was found in the middle of the street.

5) The great mini-motorcycle chase of 2006 took place in Lake Crystal, Minnesota. Police yelled at the driver to pull over, pulled in front of the mini-motorcycle, and shot a taser at the driver (what, no spike strip?). The chase ended when an officer got out of his car and pushed the driver off the mini.

6) If you go to the trouble of faking your death to get away from a federal drug investigation - don't have your wife renew your driver's license!!

7) Ummm . . . If I go get arrested, can I get bonded to a luxury super yaught too?

DUI Videos

Here's how we check to see if you are DUI in the States.

The Scottish have a much easier method.

And then there's the NYC police and the "Santa Claus Incident."

Does anybody think this guy passed his breath test?

Off Point: Treed Bear

Yeah, it has nothing to do with criminal law but I just couldn't resist. The best part is that when the bear climbed back down the cat chased him right back up another tree. I may actually have to buy this print from AP.

Profile of a Rapist

"He is a person who is driven by a ritualistic fantasy, and a key component of that is that he wants to have a relationship with his victim."
. . .
"His fantasy drives him to believe that this relationship is that of a lover, a partner, and he will quite often comment, in general terms, on the comfort and the needs of the victim."

[He] want[s] to finish the relationship on a good note.

"He perceives, his fantasy drives him to believe, that it's going to be a relationship where the victim by the end of it quite likes him, and had the circumstances been different, they would have been quite a good couple."

Just Weird

Kicking cute girls with nails in your shoes.

You can't make this stuff up.

Oops . . .

So sorry you spent 4 months in jail accused of raping a 4 year old only to have it disproven by DNA evidence.

Oregon decides to try to prevent rape

"Young women between the ages of 14 and 24 are most at risk. In a group of 30 women, about five of them will understand what it means to be forced into sex -- either by a stranger or, far more likely, by someone they know."

"Most will keep the experience to themselves, or they'll tell a friend or counselor instead of the police."

"This culture of silence is wearing on the advocates and law enforcement who work with crime victims. They've realized it's time to double their efforts in rape prevention, rather than spending most of their energy working within the boundaries of the courtroom or counselor's office."

Hmmm . . . You don't really need to know the date of your appeal

"The Wellington lawyer for a New Zealander serving 20 years in a Cambodian prison for raping five young employees plans to ask the New Zealand Government for money to fund his appeal."

"Graham Cleghorn, 58, was convicted of rape in 2004."

"This year, he won the right to a second appeal after successfully arguing that the first appeal hearing was unfair as neither he nor his lawyers knew about it until it was over."

"The new appeal date has been set for July 10."

"However, the defence received another setback this week when Cleghorn's lawyer in Cambodia, Dy Borima, quit the case, citing "frustration" at the corrupt court system."

Sex Offender Registration

North Carolina is losing its sex offenders.

Juvenile Guards and Inmates

9 guards arrested for relations with underage juvenile inmates,

Rapes Down 85%

The downtrend has been so long and so steep that almost everyone believes it to be true. The question is - why?

The Inside Joke: Anonymous Lawyer

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate Anonymous Lawyer as a 3. It's too much of an inside joke for anyone outside of the law community to get it.

========== ==========

If you've been reading blawgs for a while you probably read some of Anonymous Lawyer. When it first started people were insanely obsessed with it. It wasn't unusual to see several hundred comments per post (here's one with 550). It was the exact stereotype of what everyone in law school and with offices outside the downtown towers believes life in a large firm to be. There was a huge, ongoing, and rather heated argument about whether it was actually written by a biglaw partner or was a scam by a student, associate, or other.

I would go by every so often, but never really got into it too much - probably because there is about as much chance that I will be working at BigLaw as there is that I will serve on the federal supreme court. Then one day I noted that the author had been announced by a newspaper (can't remember which) as Jeremy Blachman, a law student.

Now comes the book. It follows the life of a partner at some generic BigLaw firm through his emails with family members and others as well as his posting on a blawg he has started. It's black humor basically laying out a life of slaving away for the firm, to the exclusion of all other things, in the battle to become the managing partner of the firm. The author derides the associates and summer associates. The author fights a battle with another partner to see who can so damage the other that he cannot become the managing partner. It is the embodiment of obsession as evil.

I'll admit, I chuckled at parts and thought it was worth reading. However, there's no way this book has a wide appeal. You can't really tell the stories in the book to someone who hasn't gone to law school - he won't get it. Thankfully, the book is an extremely easy and quick read; if it plodded just a little bit I'm not sure I would have finished it. It's a one note tune, but it's quick enough that you finish it before you realize you've grown tired of the note.

Anyway, Jeremy Blachman has an excellent personal blog which I recommend to everyone.

Police Gone Wrong

It's all fine and dandy for Scalia to talk about improved professionalism among police forces and how that justifies walking away from traditional protections of your rights. It's just another indicator that he really has no clue about anything in the criminal justice system. It's not the 95% of officers who are doing their job honestly and with the highest level of professionalism that the Constitution is meant to protect us from. The Constitution is meant to protect us from officers who are cutting corners, pushing limits, following improper orders, or just acting out-and-out illegally.

CATO @ LIBERTY has an absolute nightmare of what happens when a group of officers cross the line en masse, beat the crud out of some guy at a party, and have the responding officers arrest the guy who was beaten.

No Self Defense for You

A couple days back I posted about the right of defendants in Washington to get their defense fees from the State if they were found not guilty by reason of self defense. This prompted an email from another practitioner about the practical effects of this law.

I just saw the post on the Washington statute that requires the state to pay when it loses a criminal case on self-defense grounds. Interesting story on that. When I first started working [as a lawyer], I took a call from a Washington attorney whose client had been acquitted of some kind of homicide (I forget the details). This attorney related that the judge in her case refused to instruct on self-defense, but the jury acquitted anyway. She claimed that since R.C.W. 9A.16.110 went into effect, Washington judges had gotten very stingy on self-defense instructions out of concern for the state fisc. It actually makes a kind of bizarre sense, if you're not too hung up on, you know, basic fairness: If the jury returns a not guilty verdict without a self-defense instruction (either because they think it was self-defense even without an instruction, or for some other reason), the defendant is in good shape (albeit perhaps deeply in debt to his counsel). And if the jury returns a guilty verdict, the lack of a self-defense instruction is reversible error on appeal (assuming a self-defense instruction was really warranted). So the defendant can appeal and get a new trial. No harm, no foul . . . well, er, kinda . . .

A perfect example of the law of unwanted consequences. The Legislature out there needs to include a section stating that self defense instructions shall be given.

Thanks MR.

Gunfight at Federal Prison

FBI agents went to arrest several guards at a federal prison and the ensuing gunfight led to the death of one guard and one FBI agent.

Ignorance is Bliss

You can tell how few times Justice Scalia has been in a domestic relations court by his almost humorous naivette in Davis v. Washington.

In Davis Scalia elevates the res gestae hearsay exception above the constitutional right to confront one's accusers. The basic assumption of the res gestae is that a statement is so much a part of the happening that it is reliable. It is the reason that "Somebody yelled, 'This is a bank robbery'" is allowed into testimony without putting the co-defendant who allegedly said it on the stand. In situations like that it is a common sense rule.

However, if it is expanded much further it becomes a rule which can be scammed by someone who wants to punish the accused. Domestic 911 calls are a potent breeding ground for such scamming. I don't know all the facts in the Davis case but look at the 911 call:

"911 Operator: Hello.

"Complainant: Hello.

"911 Operator: What's going on?

"Complainant: He's here jumpin' on me again.

"911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment?

"Complainant: I'm in a house.

"911 Operator: Are there any weapons?

"Complainant: No. He's usin' his fists.

"911 Operator: Okay. Has he been drinking?

"Complainant: No.

"911 Operator: Okay, sweetie. I've got help started. Stay on the line with me, okay?

"Complainant: I'm on the line.

"911 Operator: Listen to me carefully. Do you know his last name?

"Complainant: It's Davis.

"911 Operator: Davis? Okay, what's his first name?

"Complainant: Adran

"911 Operator: What is it?

"Complainant: Adrian.

"911 Operator: Adrian?

"Complainant: Yeah.

"911 Operator: Okay. What's his middle initial?

"Complainant: Martell. He's runnin' now."

Contrast that with a statement such as:

Female Voice: Help! Help! Adrian's beating me...

Male Voice: Hang up the phone, B/tch!

CLICK . . .

The statement in Davis is meant to direct police to Davis; it is not a part of the ongoing activity like the second. It may have been emotional but how many of us have seen people lie with emotion - especially in domestic cases.

Do we know if she called Davis over and then attacked him in a drunken rage leading to her injuries as he fought her and her hair dryer, knife or lamp off (yeah, I actually had the first case and saw the others)? Was there a dispute over child custody and the possibility Davis was never there and this was a set up? The latter is unlikely, though not unheard of (some claim that up to 80% of domestic violence accusations are false), but, unfortunately, the former is not terribly unusual.

Scalia tries to justify the use of the 911 recording by stating "No 'witness' goes into court to proclaim an emergency and seek help." True, but from the defendant's point of view the witness isn't making that 911 call to proclaim an emergency and seek help. She's making that call to seek to harm him. And whether Justice Scalia believes it or not people in domestic disputes make statements all the time, whether in court or out, with the intention of hurting one another.