As a prosecutor, every so often I go along with a law enforcement officer on a "ride along." It's an interesting experience and I suggest it to anyone who has the opportunity because it gives you a look at what things are really like before they become sanitized in the courtroom. There are a few things that I've noticed on these rides:
1. People do not react well when a police car is coming down the road at high speed with lights flashing and sirens blaring. Some people just don't seem to feel they need to get out of the way. BTW, even if there are two lanes, and the passing lane is empty, pull over. A car traveling at a high rate of speed has a good chance of coming partially into your lane on that curve ahead. Worse is when people turn on their left turn signals and then pull off to the right. I've seen this twice, both times on two lane highways with little room for the officer react.
2. People drive poorly - even without alcohol. Cell phones, arguing with others in the car, eating that burger, &cetera all seem to be more important to people than staying in their lane and not swerving over into oncoming traffic.
3. Every time I've done a ride along there's been at least one mental or physical health call. Most of the time the mental health call involves keeping a scene as calm as possible until the ambulance arrives and is able to take the distressed person to the hospital. The physical health calls are usually things like someone slumped over the wheel of car by the side of the road. Not much can be done but to get there and get the lady to the hospital. Interestingly, civilians at the scene of mental health problems usually seem calmer than people at the scene of physical health problems.
4. No matter how many officers respond to a house/trailer/apartment complex they are almost always outnumbered. I'm not sure how this happens, but it seems that no matter how many officers arrive at the scene more neighbors, kin, or just plain troublemakers will simply appear. Much of the time the officers who respond to these kind of situations are peacemakers, calming everyone down and separating the two sides rather than arresting anyone.
5. The law requiring drivers passing police cars at a stop to pull over to the passing lane or (if unable) to slow down is an extremely good idea. It's amazing that more officers aren't hit as they walk back and forth between their cars and the cars they've pulled over. The side of the highway can be extremely narrow (at least here in mountain country).
6. Eating at a restaurant with a group of officers usually has this part in the conversation (regarding the restaurant's staff): "We've arrested him and him and her and, hmmm, when did Peter get back out of jail?"
7. The officers want to know how to do things right. Almost every time I've done a ride along there's been a discussion of 4th and 5th Amendment requirements brought up by the officer because he's heard that there's been some change (things like Gant and Montejo) or he's seen a defense attorney argue something in court or because he's had some tricky situation come up which he's unsure of.
8. People will admit the most amazing things to officers: "How do you know MaryBeth stole your transistor radio?" "Well, she and I were in my apartment last night doing some shrooms and the radio was there. When I woke up in the morning MaryBeth was gone and so was the radio."
31 May 2009
28 May 2009
Montejo: The Defendant Must Assert His Rights Directly to the Officers' Face
Important Cases Involved: Montejo v. Louisiana, Michigan v. Jackson (overruled), Miranda v. Arizona, Edwards v. Arizona
Tuesday the Supreme Court went out of its way to squash the 1986 decision Jackson. In Jackson the Supreme Court had, under the 6th Amendment, expanded the protections against constitutional violations by stating that as soon as an indigent defendant asked for an attorney to be appointed he had asserted his right to have an attorney present at all important parts of a trial, including any subsequent police interviews. Louisiana played games with the Jackson decision. Its supreme court ruled that because a defendant didn't actually request counsel when he went to court and had an attorney appointed, he didn't get the protection of Jackson.
Reviewing this, the US Supreme Court decided that because in some States indigents have attorneys appointed upon a showing of lack of funds rather than a request Jackson had to go. It backed this by stating that the 5th Amendment provided redundant protections, via Miranda and Edwards which are not being removed by the revocation of Jackson. It then sent the case back down to have a 5th Amendment analysis done.
Before I discussed this, I wanted to take an opportunity to review Edwards because the Court seemed to both say that it provided redundant protections to Jackson and less protections (the reason the case was returned to the State courts for another analysis). In Edwards a defendant claimed his right to have an attorney present during questioning. The questioning stopped, but the next day the defendant was read Miranda again, waived his attorney and made incriminating statements. The court held
As a practical matter, Motejo and Ventris render 6th Amendment protections during an interrogation non-existent. Combined with the basic reality that law enforcement plays by the rules we give them, this fundamentally changes the reality of police interrogation.
Law enforcement officers can interview the defendant at any point up to the time of his actual trial and are only required to stop if he unambiguously asserts his 5th Amendment rights. LEO's are not required to inform the defendant's attorney of this or have her present during the interrogation. Furthermore, non-coercive subterfuge tactics, such as placing an informant in the cell with the defendant, even after an assertion that the defendant wants his attorney present during interviews, would only be barred under the 6th Amendment from use in the prosecutor's case in chief, but could still be used in rebuttal.
Tuesday the Supreme Court went out of its way to squash the 1986 decision Jackson. In Jackson the Supreme Court had, under the 6th Amendment, expanded the protections against constitutional violations by stating that as soon as an indigent defendant asked for an attorney to be appointed he had asserted his right to have an attorney present at all important parts of a trial, including any subsequent police interviews. Louisiana played games with the Jackson decision. Its supreme court ruled that because a defendant didn't actually request counsel when he went to court and had an attorney appointed, he didn't get the protection of Jackson.
Reviewing this, the US Supreme Court decided that because in some States indigents have attorneys appointed upon a showing of lack of funds rather than a request Jackson had to go. It backed this by stating that the 5th Amendment provided redundant protections, via Miranda and Edwards which are not being removed by the revocation of Jackson. It then sent the case back down to have a 5th Amendment analysis done.
Before I discussed this, I wanted to take an opportunity to review Edwards because the Court seemed to both say that it provided redundant protections to Jackson and less protections (the reason the case was returned to the State courts for another analysis). In Edwards a defendant claimed his right to have an attorney present during questioning. The questioning stopped, but the next day the defendant was read Miranda again, waived his attorney and made incriminating statements. The court held
[W]e now hold that, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police.Practical Application
As a practical matter, Motejo and Ventris render 6th Amendment protections during an interrogation non-existent. Combined with the basic reality that law enforcement plays by the rules we give them, this fundamentally changes the reality of police interrogation.
Law enforcement officers can interview the defendant at any point up to the time of his actual trial and are only required to stop if he unambiguously asserts his 5th Amendment rights. LEO's are not required to inform the defendant's attorney of this or have her present during the interrogation. Furthermore, non-coercive subterfuge tactics, such as placing an informant in the cell with the defendant, even after an assertion that the defendant wants his attorney present during interviews, would only be barred under the 6th Amendment from use in the prosecutor's case in chief, but could still be used in rebuttal.
26 May 2009
Croson, Diversity, & the Virginia State Bar
"Diversity" has a long history of being used to mask lowered standards and quotas for subsets of the human race. In US history this can be traced back to when Harvard's president was unable to use quotas to limit the admission of Jewish students (who scored well on the competitive entry exam), but the use of "diversity" reduced Jewish admissions to the desired 15% anyway.
In the modern era, the goal of "diversity" is something which we all should look at with suspicion. In particular, as lawyers we should look very closely at any such claim. A requirement that all people, regardless of ethnicity, gender, or creed, shall be equal under the law and that equals receive the same opportunities is laudable. However, the second "diversity" steps an inch over into the zone of set asides it becomes not just morally wrong, it becomes unconstitutional.
Anyone who has gone to law school post 1989 should know this. In 1989 City of Richmond v. Croson struck down governmental set asides for anyone in a specific zone unless in remedy of a specific past discrimination in that field and the set aside was the most narrow method of curing the discrimination. "Reverse discrimination" is just as much discrimination as any other under the constitution.
Of course, since Croson those who want set asides have learned not to say so out loud. "Diversity" has become the flag behind which they now gather. Those of us who would be excluded have become wary of this.
Comes now the Virginia State Bar, an administrative agency of the Virginia Supreme Court created by the General Assembly, and decides that it no longer needs to be the organization which patrols the activities of lawyers. It needs to be an organization engaged in social engineering. Through the last president and the current occupant of that office, we are having set asides pressed upon the Bar. The president wants to change the mission of the Bar, create a Diversity Conference, and create a seat on the VSB Council and Bar Executive Council for the Chair of that conference. Mind you, this is creating a seat based not upon expertise in any area of the law or judicial circuit representation or acclaim and recognition by the Bar in general, it's a seat solely because the person occupying it is "diverse."
With this in mind, it becomes extremely important to know what the president means by "diverse." However, the president of the Bar, being a lawyer, knows better than to do that because it would make his initiative unconstitutional on its face.
Via the Virgina Lawyer (our Bar magazine), members have raised strong, well-reasoned objections to this as outside the scope of the Bar's function, a controversial social issue which the Bar should not get involved in, and an obvious beard for quotas. "'Diversity' Ends in a Racial Headcount", "Disband Task Force,Withdraw Proposal", "Rule of Law Not Linked to Diversity", "Focus on Individuals, Not Groups", "Disband Diversity Task Force".
Will these letters stop the Bar president? Probably not. Let's be honest, most lawyers couldn't give a hoot as to what the Bar is doing (right or wrong) unless it impacts their life or they need its protection. No one I've talked to even knew this initiative is pending. It'll get through without the notice of the vast majority of the Bar.
Next comes the possibility of legal challenge. After all, the Bar is created by one branch of Virginia's government and serves another; it's a government agent. Can it create these set asides? In particular, can it set aside a position on the VSB Council and VSB Executive Council based upon "diversity?" It's a question which might require some data before the question can be decided. After all, by opening the diversity committee to individual lawyers the Bar allows all Bar members to join. In other words, there won't be a sign at the door saying "White Male Christians need not apply." It's theoretically possible that this committee might actually be diverse. If the membership distribution of the conference is roughly equivalent to the membership distribution of the Bar and its leadership reflects such the conference would be constitutional. Want to take bets on whether that will be the case?
In the modern era, the goal of "diversity" is something which we all should look at with suspicion. In particular, as lawyers we should look very closely at any such claim. A requirement that all people, regardless of ethnicity, gender, or creed, shall be equal under the law and that equals receive the same opportunities is laudable. However, the second "diversity" steps an inch over into the zone of set asides it becomes not just morally wrong, it becomes unconstitutional.
Anyone who has gone to law school post 1989 should know this. In 1989 City of Richmond v. Croson struck down governmental set asides for anyone in a specific zone unless in remedy of a specific past discrimination in that field and the set aside was the most narrow method of curing the discrimination. "Reverse discrimination" is just as much discrimination as any other under the constitution.
Of course, since Croson those who want set asides have learned not to say so out loud. "Diversity" has become the flag behind which they now gather. Those of us who would be excluded have become wary of this.
Comes now the Virginia State Bar, an administrative agency of the Virginia Supreme Court created by the General Assembly, and decides that it no longer needs to be the organization which patrols the activities of lawyers. It needs to be an organization engaged in social engineering. Through the last president and the current occupant of that office, we are having set asides pressed upon the Bar. The president wants to change the mission of the Bar, create a Diversity Conference, and create a seat on the VSB Council and Bar Executive Council for the Chair of that conference. Mind you, this is creating a seat based not upon expertise in any area of the law or judicial circuit representation or acclaim and recognition by the Bar in general, it's a seat solely because the person occupying it is "diverse."
With this in mind, it becomes extremely important to know what the president means by "diverse." However, the president of the Bar, being a lawyer, knows better than to do that because it would make his initiative unconstitutional on its face.
IT HAS BEEN SAID that we need to precisely define diversity to create such a structure. I disagree.While diversity by necessity must not neglect consideration of race, heritage, and gender, for example, I believe that the term must be allowed to evolve.I'm surprised he actually went so far as to admit race, heritage, and gender must be considered (be the admission ever so backhanded). Nevertheless, without defining it he has declared it extremely important in the pursuit of the law.
Via the Virgina Lawyer (our Bar magazine), members have raised strong, well-reasoned objections to this as outside the scope of the Bar's function, a controversial social issue which the Bar should not get involved in, and an obvious beard for quotas. "'Diversity' Ends in a Racial Headcount", "Disband Task Force,Withdraw Proposal", "Rule of Law Not Linked to Diversity", "Focus on Individuals, Not Groups", "Disband Diversity Task Force".
Will these letters stop the Bar president? Probably not. Let's be honest, most lawyers couldn't give a hoot as to what the Bar is doing (right or wrong) unless it impacts their life or they need its protection. No one I've talked to even knew this initiative is pending. It'll get through without the notice of the vast majority of the Bar.
Next comes the possibility of legal challenge. After all, the Bar is created by one branch of Virginia's government and serves another; it's a government agent. Can it create these set asides? In particular, can it set aside a position on the VSB Council and VSB Executive Council based upon "diversity?" It's a question which might require some data before the question can be decided. After all, by opening the diversity committee to individual lawyers the Bar allows all Bar members to join. In other words, there won't be a sign at the door saying "White Male Christians need not apply." It's theoretically possible that this committee might actually be diverse. If the membership distribution of the conference is roughly equivalent to the membership distribution of the Bar and its leadership reflects such the conference would be constitutional. Want to take bets on whether that will be the case?
24 May 2009
20 May 2009
Because Even a Defense Attorney Might Want a Badge
If you're suffering from a serious case of badge envy, you too can pay $120 and get an "Officer of the Court" badge made. It won't give you any real powers, or actually mean anything, but I'm sure it will impress someone.
18 May 2009
"Holier Than Thou" / "There But For the Grace of God"
Sherry Colb has an article about what I think most of us who practice criminal law would recognize as the "those people" attitude. She gives it her own spin, calling it the "holier-than-thou effect." Basically, it is the inability of people see themselves as a person who would fail in situations where they were tempted - through chance, fate, or desperation - to break the societal compact as embodied in the law.
Ms. Colb goes further identifying 4 purposes to criminal law: retribution, deterrence, incapacitating offenders, and rehabilitation. She identifies retribution as the primary focus of the American system based upon the lack of rehabilitation programs in prisons in combination with rapes and gangs. Then she concludes that locking someone away in this situation, away from law-abiding citizens is a bad thing, so that shorter sentences are most likely preferable.
Here's a graphic of how I've observed the punishment of offenders in the time I've been practicing.
I've tried to be a little conservative in my estimates for this chart. In reality I think that the downward slope is more severe. However, I don't have actual figures, so I adjusted by assuming higher numbers of more severe punishments. In any event, it gives a true view of how offenders are actually punished.1
Why is there such a severe downslope? Because the greatest number of offenses are treated with mercy. People just don't get thrown in jail for reckless driving, DUI, writing a bad check, or most misdemeanors the first time they are convicted (without aggravating circumstances). There's a good chance they won't go to jail for a second or even third misdemeanor conviction, particularly if they are different types (driving suspended, bad check, assault and battery). Furthermore, there's a whole slew of felonies wherein the first conviction will only get an offender probation.
Next come the convictions which should lead to incarceration, but do not because they are somehow diverted. Sometimes this is just having a case continued to be dismissed if there are no problems for a year. In other cases there are drug courts, shoplifting classes, anger management programs, and/or community service given in lieu of incarceration.
Then come the minor incarcerations. I don't know how many offenders get a couple days in jail or 10 days or 3 months, but I lay odds that by far the largest number of incarcerations fall within that range. Misdemeanor courts hand out punishments such as this daily and any misdemeanor court which has significant numbers of defendants appearing before it probably hands out several a day. Felony courts hand out incarcerations in the "up to 6 month" range all the time to offenders with prior misdemeanor records or their second or third felony conviction.
Even for those who actually have incarceration imposed there are mitigations against its effect. Most commonly these mitigations include serving time on days off of work (weekend time) and getting work release. However, it can also include things such as delayed reporting to jail, furloughs while in jail, or home incarceration. Even failing all of this, most every incarceration system has some sort of "good time" so that if the offender behaves he is not required to serve a certain amount of his sentence.
In my experience, to get more than a year an offender has to have a prior record, have committed multiple offenses, have committed a violent felony, or violated a particular law (firearm with drugs, 4th DUI, use firearm in felony). To get more than two years incarceration an offender usually has to combine two or more of these elements; 3 to 5 years usually requires even more of a combination of these elements. To get above 5 years the offender usually has to do something significant: armed robbery, rape, murder, etc. It may not be impossible to get above five years without having committed a major violent felony, but it'd be mighty hard (unless in a State with a very strict 3 strikes law). The most I've seen an offender convicted of larceny or the like get in Virginia is 5 years and even then it was a departure above guidelines.
Somewhere between 1 to 3 years of potential actual sentence comes the point at which mercy stops being an option. Even at 3 years a judge in Virginia can order the Department of Corrections to have an offender entered into a specific drug treatment program run in the prison. Still, there must come a point at which the tendency toward mercy must be overcome by obligations to the citizenry at large.
In these more serious offenses retribution, deterrence, and incapacitation are all tied together. A robber whom a jury sentences to 10 years in retribution is incapacitated for those 10 years and serves as a deterrence for those who consider following in his footsteps. However, when we consider the system as a whole, we must conclude that the system serves more of the purpose of deterrence and incapacitation. After all, no one really gets recompense (outside of restitution) in a criminal case. Retribution is at heart a distributive justice theory and no victim can have that which is taken in a rape or shooting actually returned by putting the other person in prison. At best, if one thinks that recompense can be made by putting someone in prison, the only person(s) brought back to equilibrium is the victim. For the rest of us it matters not whether the victim is made whole. For the vast majority of people the only effects are the protection of society through the incapacitation and deterrence.
----------
1 Please note that most of this is modeled on Virginia's judicial system and the sentencing guidelines in place in Virginia.
Ms. Colb goes further identifying 4 purposes to criminal law: retribution, deterrence, incapacitating offenders, and rehabilitation. She identifies retribution as the primary focus of the American system based upon the lack of rehabilitation programs in prisons in combination with rapes and gangs. Then she concludes that locking someone away in this situation, away from law-abiding citizens is a bad thing, so that shorter sentences are most likely preferable.
Indeed, the situation-dependent nature of behavior counsels against surrounding a person convicted of wrongdoing with other criminals for long stretches of time, during which he will be almost entirely cut off from what lawful behavior in civilized society looks like. Shorter and less brutal sentences, coupled with humane and educational transition opportunities for former prisoners, could yield better results for everyone.This article struck me as wrong in many ways, but I'm just going to concentrate on one here: Ms. Colb badly overestimates the effect of "holier than thou" on the system. Our system is far more dominated by the "there but for the Grace of God" thought process.
To take into account the holier-than-thou effect might also facilitate the forgiveness necessary to our ability to think logically about the problem of crime. If we are filled with rage and hatred, it will be more difficult for us to imagine, and thus to allow, that someone who committed a bad act in the past might soon become (or might even have already been) a contributing member of society.
Here's a graphic of how I've observed the punishment of offenders in the time I've been practicing.
I've tried to be a little conservative in my estimates for this chart. In reality I think that the downward slope is more severe. However, I don't have actual figures, so I adjusted by assuming higher numbers of more severe punishments. In any event, it gives a true view of how offenders are actually punished.1
Why is there such a severe downslope? Because the greatest number of offenses are treated with mercy. People just don't get thrown in jail for reckless driving, DUI, writing a bad check, or most misdemeanors the first time they are convicted (without aggravating circumstances). There's a good chance they won't go to jail for a second or even third misdemeanor conviction, particularly if they are different types (driving suspended, bad check, assault and battery). Furthermore, there's a whole slew of felonies wherein the first conviction will only get an offender probation.
Next come the convictions which should lead to incarceration, but do not because they are somehow diverted. Sometimes this is just having a case continued to be dismissed if there are no problems for a year. In other cases there are drug courts, shoplifting classes, anger management programs, and/or community service given in lieu of incarceration.
Then come the minor incarcerations. I don't know how many offenders get a couple days in jail or 10 days or 3 months, but I lay odds that by far the largest number of incarcerations fall within that range. Misdemeanor courts hand out punishments such as this daily and any misdemeanor court which has significant numbers of defendants appearing before it probably hands out several a day. Felony courts hand out incarcerations in the "up to 6 month" range all the time to offenders with prior misdemeanor records or their second or third felony conviction.
Even for those who actually have incarceration imposed there are mitigations against its effect. Most commonly these mitigations include serving time on days off of work (weekend time) and getting work release. However, it can also include things such as delayed reporting to jail, furloughs while in jail, or home incarceration. Even failing all of this, most every incarceration system has some sort of "good time" so that if the offender behaves he is not required to serve a certain amount of his sentence.
In my experience, to get more than a year an offender has to have a prior record, have committed multiple offenses, have committed a violent felony, or violated a particular law (firearm with drugs, 4th DUI, use firearm in felony). To get more than two years incarceration an offender usually has to combine two or more of these elements; 3 to 5 years usually requires even more of a combination of these elements. To get above 5 years the offender usually has to do something significant: armed robbery, rape, murder, etc. It may not be impossible to get above five years without having committed a major violent felony, but it'd be mighty hard (unless in a State with a very strict 3 strikes law). The most I've seen an offender convicted of larceny or the like get in Virginia is 5 years and even then it was a departure above guidelines.
Somewhere between 1 to 3 years of potential actual sentence comes the point at which mercy stops being an option. Even at 3 years a judge in Virginia can order the Department of Corrections to have an offender entered into a specific drug treatment program run in the prison. Still, there must come a point at which the tendency toward mercy must be overcome by obligations to the citizenry at large.
In these more serious offenses retribution, deterrence, and incapacitation are all tied together. A robber whom a jury sentences to 10 years in retribution is incapacitated for those 10 years and serves as a deterrence for those who consider following in his footsteps. However, when we consider the system as a whole, we must conclude that the system serves more of the purpose of deterrence and incapacitation. After all, no one really gets recompense (outside of restitution) in a criminal case. Retribution is at heart a distributive justice theory and no victim can have that which is taken in a rape or shooting actually returned by putting the other person in prison. At best, if one thinks that recompense can be made by putting someone in prison, the only person(s) brought back to equilibrium is the victim. For the rest of us it matters not whether the victim is made whole. For the vast majority of people the only effects are the protection of society through the incapacitation and deterrence.
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1 Please note that most of this is modeled on Virginia's judicial system and the sentencing guidelines in place in Virginia.
17 May 2009
11 May 2009
More on Flores-Figueroa
I got a couple interesting comments on my last post. Donald first raised the Rule of Lenity because the statute is poorly written. I couldn't quite get there, but it did start me thinking. What if you ignored the way the Court did its analysis and looked at the statute as a whole, considering "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" as a verbal phrase, thus rendering "transfers, possesses, or uses, without lawful authority, a means of identification of another person" into a multi-part verb all of which is modified by knowingly. However, while the thought was still nascent in the slow-grinding gears in my head, Neal Goldfarb stepped up and pointed to a blog post and his amicus brief. Both put forth strong arguments for that position. Both are better than the Supreme Court's "'cuz it looks right" explanation.
However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.
Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.
Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.
However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.
Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.
Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.
05 May 2009
Flores-Figueroa: Forgiving Sloppy Statutese
[1] The USSC decided a case yesterday contrary to the actual language of the statute - using the language of statutory interpretation. In Flores-Figueroa, the Court had to decides "knowingly" is not an adverb but a substitute for the phrase "knowing it to be." The Court is interpreting this statute:
[7] "Knowingly" does not equal "knowing it to be." To be certain, the statute is poorly written and would make much more sense if it were written in the manner which the Court decided to rewrite it. However, as we all learned somewhen about the 3d grade, "ly" is a suffix indicating an adverb. This confines it to the verbs, "transfers, possesses, or uses." Thus, the government is quite correct in claiming that "knowingly" applies only to those four words. The Court is correct in stating that "without lawful authority" (the next three words-making "its first seven") isn't modified by "knowingly" because they also modify the verbs.
[8] Before anyone argues that certain adjectives can also end in "ly", I concede the point. Words such as "lovely" are clearly adjectives: "the lovely dress." Still, the general rule isn't violated in this case.
[9] In any event, I invite you to diagram that statute. Go on, it's a skill we all learned in seventh grade English class. Okay, now look at that line which separates the verbs from the object. Which side is "knowingly" on? The verbal side. Or, if you don't have the rudimentary English skills to do that, just take "knowingly" and try to fit it anywhere into "a means of identification of another person" without changing the form of "knowingly." It doesn't work.
[10] Justify your decision another way. Tell me that the Constitution, via the common law, requires a defendant to intend every element of a crime. Tell me there's a rule of statutory interpretation requiring intent for every element of a crime. Heck, tell me there's a scriviner's error. Just don't tell me you've reached this conclusion "as a matter of ordinary English grammar."
[2] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. 18 U. S. C. §1028A(a)(1)[3] However, when the Court is finished with it, the statute ends up being this:
[4] transfers, possesses, or uses, without lawful authority, a means of identification knowing it to be of another person.[5] The Court's rationale is that
As a matter of ordinary English grammar, it seems natural to read the statute’s word "knowingly" as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word "knowingly" applies only to the statutes first four words, or even its first seven.[6] Poppycock. Balderdash. Fiddlesticks.
[7] "Knowingly" does not equal "knowing it to be." To be certain, the statute is poorly written and would make much more sense if it were written in the manner which the Court decided to rewrite it. However, as we all learned somewhen about the 3d grade, "ly" is a suffix indicating an adverb. This confines it to the verbs, "transfers, possesses, or uses." Thus, the government is quite correct in claiming that "knowingly" applies only to those four words. The Court is correct in stating that "without lawful authority" (the next three words-making "its first seven") isn't modified by "knowingly" because they also modify the verbs.
[8] Before anyone argues that certain adjectives can also end in "ly", I concede the point. Words such as "lovely" are clearly adjectives: "the lovely dress." Still, the general rule isn't violated in this case.
[9] In any event, I invite you to diagram that statute. Go on, it's a skill we all learned in seventh grade English class. Okay, now look at that line which separates the verbs from the object. Which side is "knowingly" on? The verbal side. Or, if you don't have the rudimentary English skills to do that, just take "knowingly" and try to fit it anywhere into "a means of identification of another person" without changing the form of "knowingly." It doesn't work.
[10] Justify your decision another way. Tell me that the Constitution, via the common law, requires a defendant to intend every element of a crime. Tell me there's a rule of statutory interpretation requiring intent for every element of a crime. Heck, tell me there's a scriviner's error. Just don't tell me you've reached this conclusion "as a matter of ordinary English grammar."
04 May 2009
30 April 2009
Kansas v. Ventris:
Trimming Protections Against Unconstitutional Interrogations
[1] In Kansas v. Ventris the question presented to the US Supreme Court was whether a confession gained by police instigated interrogation of a defendant after he has an attorney can be used to impeach the defendant's trial testimony.
Facts
[2] After Ventris had an attorney, police sent an informant into his cell to get information. The informant reported that Ventris confessed the crime to him. At trial, the defendant testified that he did not commit the crime. The prosecution then used the informant in rebuttal to impeach the defendant. After conviction defendant appealed the planting of the informant in his cell as unconstitutional questioning without the defendant's attorney present (or waiver of his presence).
6th Amendment Right to Counsel
[3] Scope of the Right: The Court makes it extremely clear that the right to counsel is not limited merely to the actual trial. The defendant is definitely entitled to his 6th Amendment right to have his counsel present at any pretrial interrogation.
[4] Scope of the Remedy: Unconstitutionally obtained statements shall be allowed in rebuttal. They are still banned from the prosecutor's case in chief.
[5] The entire basis of this decision is the Court devaluing the constitutionally guaranteed right to counsel in favor of the a non-constitutional mandate that courts should be protected against possible perjury and disruption of "the integrity of the trial process." This is poorly reasoned, favoring the discouraging of illegal acts over the forbidding of unconstitutional ones. It is badly out of kilter with modern constitutional cases such a Virginia v. Moore which proclaim that illegalities are irrelevant as long as the constitution is followed.
[7] Not every illegal act is unconstitutional. Perjury started out as a common law crime (Blackstone, Book IV Chapter 10 sec. 16), but has long since been a statutory crime. See 18 USC 1621, Kentucky Revised Statute 523.020, Rhode Island General Law 11-33-1, Michigan Penal Code 750.422, and Alaska Statute 11.56.200. Even Virginia, with its fondness for the common law, has made perjury a statutory offense. In either event, perjury is a criminal offense against the orderly pursuit of justice and the constitution is silent upon whether the government has a right to unperjured testimony. This does not mean it approves of it; it just means that it was a matter left to the legislatures to sort out and thus became a matter of law rather than constitution (as demonstrated by the statues enacted).
[8] As well, perjury as a criminal charge is not within the bosom of the courts. As an initial matter, the decision of whether someone has committed perjury is prerogative of the prosecutor - not the courts. Should a prosecutor have proof that perjury has been committed the statutes clearly lay out the remedies which the various legislatures have allowed prosecutors to seek. All of these require a trial specifically on the matter of perjury and its proof beyond a reasonable doubt. None of them rise to the level of a constitutional matter.
[9] What the Court is actually talking about here is impeachment. It's a handy way of short stopping the entire issue of perjury. The level of proof for impeachment is far lower than would be required in giving someone their constitutional right to a trial on perjury and its requirement of proof beyond a reasonable doubt. Impeachment merely requires some rational quantum of evidence tending to show that the testimony of a witness was not truthful. Of course, impeachment is a valid part of any trial and it's not mutually exclusive of a perjury charge. However, it is instructive about what the court actually decided.
[10] The US Supreme Court decided that presenting evidence which does not rise to the level of proof beyond a reasonable doubt of perjury - merely tending to show that a defendant's testimony was not truthful - is more important than a clearly violated constitutional right to have counsel present during questioning. As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.
[11] Ultimately, in a most amazing paragraph the Court simply states that no harm will come from this because it's not likely a defendant will testify in his own defense anyway and that an officer won't violate the right because then the evidence gained will only be usable to impeach the defendant's testimony and the officer can't anticipate that the defendant will get on the stand and tell a story inconsistent with the story he'll tell the officer when his right to counsel is violate.
Practical Application
[14] As a practical matter, this opens up several tactics to law enforcement. Prior to this decision the further development of the case through human information gathering techniques was severely limited after the defendant had a lawyer. Now the Supreme Court has given its imprimatur to the continued use of human information gathering techniques despite a defense attorney's involvement.
[15] Informants, whether they be planted in jail or sent to approach a defendant on bond, are clearly sanctioned by this opinion. Furthermore, this decision's scope seems to allow police to reinterview the defendant after the appointment of an attorney. Neither of these will produce evidence which can be used in the prosecutor's case in chief. However, the mere fact that a charge has been taken should reflect that the prosecutor already has enough evidence for his case in chief. The purpose of the actions taken after a defendant has an attorney will be to preclude the defendant from testifying or build a crushing case against him should he choose to do so. These are all constitutionally valid tactics per the Ventris decision and if these are the rules we lay down for our law enforcement agencies we should expect they will play by the rules we give them.
Facts
[2] After Ventris had an attorney, police sent an informant into his cell to get information. The informant reported that Ventris confessed the crime to him. At trial, the defendant testified that he did not commit the crime. The prosecution then used the informant in rebuttal to impeach the defendant. After conviction defendant appealed the planting of the informant in his cell as unconstitutional questioning without the defendant's attorney present (or waiver of his presence).
6th Amendment Right to Counsel
[3] Scope of the Right: The Court makes it extremely clear that the right to counsel is not limited merely to the actual trial. The defendant is definitely entitled to his 6th Amendment right to have his counsel present at any pretrial interrogation.
[4] Scope of the Remedy: Unconstitutionally obtained statements shall be allowed in rebuttal. They are still banned from the prosecutor's case in chief.
~~~~~ Lammers ~~~~~
[5] The entire basis of this decision is the Court devaluing the constitutionally guaranteed right to counsel in favor of the a non-constitutional mandate that courts should be protected against possible perjury and disruption of "the integrity of the trial process." This is poorly reasoned, favoring the discouraging of illegal acts over the forbidding of unconstitutional ones. It is badly out of kilter with modern constitutional cases such a Virginia v. Moore which proclaim that illegalities are irrelevant as long as the constitution is followed.
[7] Not every illegal act is unconstitutional. Perjury started out as a common law crime (Blackstone, Book IV Chapter 10 sec. 16), but has long since been a statutory crime. See 18 USC 1621, Kentucky Revised Statute 523.020, Rhode Island General Law 11-33-1, Michigan Penal Code 750.422, and Alaska Statute 11.56.200. Even Virginia, with its fondness for the common law, has made perjury a statutory offense. In either event, perjury is a criminal offense against the orderly pursuit of justice and the constitution is silent upon whether the government has a right to unperjured testimony. This does not mean it approves of it; it just means that it was a matter left to the legislatures to sort out and thus became a matter of law rather than constitution (as demonstrated by the statues enacted).
[8] As well, perjury as a criminal charge is not within the bosom of the courts. As an initial matter, the decision of whether someone has committed perjury is prerogative of the prosecutor - not the courts. Should a prosecutor have proof that perjury has been committed the statutes clearly lay out the remedies which the various legislatures have allowed prosecutors to seek. All of these require a trial specifically on the matter of perjury and its proof beyond a reasonable doubt. None of them rise to the level of a constitutional matter.
[9] What the Court is actually talking about here is impeachment. It's a handy way of short stopping the entire issue of perjury. The level of proof for impeachment is far lower than would be required in giving someone their constitutional right to a trial on perjury and its requirement of proof beyond a reasonable doubt. Impeachment merely requires some rational quantum of evidence tending to show that the testimony of a witness was not truthful. Of course, impeachment is a valid part of any trial and it's not mutually exclusive of a perjury charge. However, it is instructive about what the court actually decided.
[10] The US Supreme Court decided that presenting evidence which does not rise to the level of proof beyond a reasonable doubt of perjury - merely tending to show that a defendant's testimony was not truthful - is more important than a clearly violated constitutional right to have counsel present during questioning. As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.
[11] Ultimately, in a most amazing paragraph the Court simply states that no harm will come from this because it's not likely a defendant will testify in his own defense anyway and that an officer won't violate the right because then the evidence gained will only be usable to impeach the defendant's testimony and the officer can't anticipate that the defendant will get on the stand and tell a story inconsistent with the story he'll tell the officer when his right to counsel is violate.
[12] On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen - or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief.[13] That's correct, a US Supreme Court decision is based on a belief that it is unlikely that the defendant will testify. It's backed up by a statement that shows an amazing lack of understanding of why a statement would be taken by a police officer. The exact purpose that an officer would be taking a statement after the defendant has an attorney is to lock him into a particular version of the facts with the thought that the defendant could tell a different story at trial. After all, if the officer expected the defendant to take the stand and testify exactly in the manner most likely to lead to a conviction, why would he waste time trying to get a statement from the defendant?
Practical Application
[14] As a practical matter, this opens up several tactics to law enforcement. Prior to this decision the further development of the case through human information gathering techniques was severely limited after the defendant had a lawyer. Now the Supreme Court has given its imprimatur to the continued use of human information gathering techniques despite a defense attorney's involvement.
[15] Informants, whether they be planted in jail or sent to approach a defendant on bond, are clearly sanctioned by this opinion. Furthermore, this decision's scope seems to allow police to reinterview the defendant after the appointment of an attorney. Neither of these will produce evidence which can be used in the prosecutor's case in chief. However, the mere fact that a charge has been taken should reflect that the prosecutor already has enough evidence for his case in chief. The purpose of the actions taken after a defendant has an attorney will be to preclude the defendant from testifying or build a crushing case against him should he choose to do so. These are all constitutionally valid tactics per the Ventris decision and if these are the rules we lay down for our law enforcement agencies we should expect they will play by the rules we give them.
27 April 2009
Gant: A Sea Change in Car Searches
[1] On 21 April 2009 the US Supreme Court changed decades of law enforcement practice by clamping down on searches of vehicles incident to arrest. Arizona v. Gant is a tour de force by Justice Stevens in which he weaves his way through all the old precedents to change the interpretation most lower courts have given to the ability of officers to search cars after arresting their drivers.
[2] Gant's theory both prunes and widens the circumstances under which an officer may search the car after an offender is arrested. In reality, the effect is a net reduction in the scope of officer searches.
[3] The prior rule was that after any arrest police could search the passenger compartment of a vehicle because of "exigent circumstances." In other words, once the offender was placed under arrest the officer could search the car in order to preclude the possibility that the offender might destroy any evidence or reach a weapon. Of course, any sane officer restrains a person he has placed under arrest before he turns his back on that person in order to search the car. However, this had never seemed to bother lower courts and had even seemingly been given a pass (although never specifically approved) by the US Supreme Court.
[4] The new rule has 2 parts. First, if there are actual exigent circumstances, such that the defendant(s) is not restrained and could actually reach something inside the vehicle, a search can take place; however, "exigent" searches can no longer happen when the offender is handcuffed and properly restrained. Since an arresting officer should always prioritize to his own safety, this situation will be extremely rare.
[5] Second, an officer can search a vehicle if it is reasonable to believe evidence of the crime the offender was arrested for will be found in the car. An example is if an officer arrests someone who has just stolen from Mega^Store and sees two of the stolen items in the car; it'd be reasonable to search the car for the other 4 items the thief stole at the same time.
[6] Every lawyer I spoke to seemed to have pretty much the same reaction: they predicted a great upsurge in vehicle impoundment and inventory searches subsequent to the impoundmment. Typical of such reactions was lawscribe's (via Twitter): "You will [see] a massive jump in inventory searches and careful review of dept policies to make cars consistently easier to impound."
Impounding in Virginia
[7] With this in mind I went looking to see what is allowed vis-a-vis the impounding of vehicles. In Virginia the controlling case is King v. Commonwealth from 2002. King lays out a set of rules under which impoundement can take place. The first rule is that there must be a standard police policy under which the vehicle is impounded. However, even a written policy does not, in and of itself, make the impoundment valid.
[8] Beyond the written policy, there are only two justifications for impounding a vehicle. A vehicle must either be a risk to public safety or need to be safeguarded. Although not absolutely exhaustive, the generally approved circumstances for impoundement are when the vehicle is blocking traffic, trespassing on private property, or violating parking ordinances/laws. Neither the fact that a vehicle is parked next to a busy road nor that it may be vandalized is a satisfactory reason to impound a vehicle.
[9] A vehicle also may not be impounded if the offender is able to arrange for the vehicle to be moved. Generally, the mere fact that an offender is under arrest will preclude such an arrangement. However, if there is another citizen present at the scene, who is a legal driver and who will take the car to where the offender wants it, an officer is required, by Virginia Code sec. 19.2-80.1, to allow that citizen to drive the car from the scene.
[10] Finally, a vehicle may not be impounded for the purpose of performing a search upon it.
[11] Personally, I don't see impoundment becoming a major issue in Virginia. King is solid, long-standing precedent rooted in the 4th Amendment so that the rules cannot be changed by the Virginia General Assembly.
[2] Gant's theory both prunes and widens the circumstances under which an officer may search the car after an offender is arrested. In reality, the effect is a net reduction in the scope of officer searches.
[3] The prior rule was that after any arrest police could search the passenger compartment of a vehicle because of "exigent circumstances." In other words, once the offender was placed under arrest the officer could search the car in order to preclude the possibility that the offender might destroy any evidence or reach a weapon. Of course, any sane officer restrains a person he has placed under arrest before he turns his back on that person in order to search the car. However, this had never seemed to bother lower courts and had even seemingly been given a pass (although never specifically approved) by the US Supreme Court.
[4] The new rule has 2 parts. First, if there are actual exigent circumstances, such that the defendant(s) is not restrained and could actually reach something inside the vehicle, a search can take place; however, "exigent" searches can no longer happen when the offender is handcuffed and properly restrained. Since an arresting officer should always prioritize to his own safety, this situation will be extremely rare.
[5] Second, an officer can search a vehicle if it is reasonable to believe evidence of the crime the offender was arrested for will be found in the car. An example is if an officer arrests someone who has just stolen from Mega^Store and sees two of the stolen items in the car; it'd be reasonable to search the car for the other 4 items the thief stole at the same time.
[6] Every lawyer I spoke to seemed to have pretty much the same reaction: they predicted a great upsurge in vehicle impoundment and inventory searches subsequent to the impoundmment. Typical of such reactions was lawscribe's (via Twitter): "You will [see] a massive jump in inventory searches and careful review of dept policies to make cars consistently easier to impound."
Impounding in Virginia
[7] With this in mind I went looking to see what is allowed vis-a-vis the impounding of vehicles. In Virginia the controlling case is King v. Commonwealth from 2002. King lays out a set of rules under which impoundement can take place. The first rule is that there must be a standard police policy under which the vehicle is impounded. However, even a written policy does not, in and of itself, make the impoundment valid.
[8] Beyond the written policy, there are only two justifications for impounding a vehicle. A vehicle must either be a risk to public safety or need to be safeguarded. Although not absolutely exhaustive, the generally approved circumstances for impoundement are when the vehicle is blocking traffic, trespassing on private property, or violating parking ordinances/laws. Neither the fact that a vehicle is parked next to a busy road nor that it may be vandalized is a satisfactory reason to impound a vehicle.
[9] A vehicle also may not be impounded if the offender is able to arrange for the vehicle to be moved. Generally, the mere fact that an offender is under arrest will preclude such an arrangement. However, if there is another citizen present at the scene, who is a legal driver and who will take the car to where the offender wants it, an officer is required, by Virginia Code sec. 19.2-80.1, to allow that citizen to drive the car from the scene.
[10] Finally, a vehicle may not be impounded for the purpose of performing a search upon it.
[11] Personally, I don't see impoundment becoming a major issue in Virginia. King is solid, long-standing precedent rooted in the 4th Amendment so that the rules cannot be changed by the Virginia General Assembly.
20 April 2009
Race, Knives, & Fists: More on the Jason Vassell Case
Back in February I wrote a post complaining that I couldn't figure out whether the charges were justified against Jason Vassell, a black student charged with 2 counts of aggravated assault and battery with a dangerous weapon under (I believe) MGL Chapter 265: Section 15A:
I did. It moved me much further along the line toward belief in Mr. Vassell's guilt of A&B (the gradation of the appropriate final conviction I am still uncertain of). Let me explain.
The Law
Apparently Massachusetts allows for the pretrial dismissal of a case if 3 conditions are met:
The way the defense tries to get past the first test is to conflate the assault by one of the "victims" and the assault and battery by the other "victim" on Mr. Vassell with the assault and battery with a weapon by Mr. Vassell. There are two flaws in this. First, neither of the "victims" used a weapon as required by the statute Mr. Vassell is charged under and thus could not have been part of the same group as Mr. Vassell. Second, it's doubtful that the case from which this test comes is talking about a small group. Palacios is about a claim of selective enforcement of DUI and driving with a suspended license against a driver based upon his ethnic background. The "group" would be all drivers - a rather large group.
Even if a group of 3 people was sufficient, the presence of only one weapon, the knife held by Mr. Vassell, causes the defense's argument to fail the second test. There cannot be a consistent or deliberate failure to prosecute the "victims" because it is impossible to charge them under the same law.
The Tactics
Why would defense counsel put this argument forth? Because Mr. Vassell is in a world of hurt. By the defense's own statement of facts after the initial conflict Mr. Vassell picked up a knife, carried it to the location of the second conflict, and drew it before he was physically attacked.
I don't know Massachusetts case law, but if it is anything like Virginia, the use of fists (as the victims did) carries with it a inference that the intent is not lethal while the use of a knife (as Mr. Vassell did) carries the opposite inference. When Mr. Vassell brought and drew a knife he unilaterally escalated to the use of lethal force. On the facts, it appears that Mr. Vassell is guilty of that which he is charged.
On the other hand, Paracios also states that in Massachusetts
This motion strikes me as a gambit played as part of negotiating a plea. The defense is showing that it will move forward with self defense bolstered by the ability to impeach the victims to shreds. Still, it has to take into account the fact that Mr. Vassell brought a knife to a fist fight and drew it first. In the end, I'd be surprised if this went to trial because of uncertainty on both sides (unless it has become so blown up that one side or the other won't back down or the facts are even more anti-defendant than the motion lets on).
(c) Whoever:There has been a rather strident campaign launched in support of Mr. Vassell and my former post elicited a response which laid out the factual position claimed for Mr. Vassell and asked me to read the Defense's Motion to Dismiss.
(i) by means of a dangerous weapon, commits an assault and battery upon another and by such assault and battery causes serious bodily injury;
. . .
shall be punished by imprisonment in the state prison for not more than 15 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.
(d) For the purposes of this section, "serious bodily injury" shall mean bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.
I did. It moved me much further along the line toward belief in Mr. Vassell's guilt of A&B (the gradation of the appropriate final conviction I am still uncertain of). Let me explain.
The Law
Apparently Massachusetts allows for the pretrial dismissal of a case if 3 conditions are met:
In order to obtain a dismissal on the basis of selective enforcement, the defendant must initially offer evidence that reasonably permits an inference of unlawful discrimination by showing thatDefense counsel does yeoman's work trying to stretch this test to cover the facts of the case at hand. He expends a great amount of effort showing that the "victims" in this case were brutish, aggressive, racist cretins. He shows some strong indications that law enforcement jumped to some improper conclusions. Yet, he never gets past the first test.
(1) a broader group of persons than those prosecuted has violated the law;
(2) the failure to prosecute others was either consistent or deliberate; and
(3) the decision not to prosecute others was based on an impermissible classification factor such as race, religion, or sex.
If the defendant satisfies that initial burden, the Commonwealth must then rebut the inference that there has been selective enforcement, or the case will be dismissed.
Commonwealth v. Palacios Docket 05-P-52
The way the defense tries to get past the first test is to conflate the assault by one of the "victims" and the assault and battery by the other "victim" on Mr. Vassell with the assault and battery with a weapon by Mr. Vassell. There are two flaws in this. First, neither of the "victims" used a weapon as required by the statute Mr. Vassell is charged under and thus could not have been part of the same group as Mr. Vassell. Second, it's doubtful that the case from which this test comes is talking about a small group. Palacios is about a claim of selective enforcement of DUI and driving with a suspended license against a driver based upon his ethnic background. The "group" would be all drivers - a rather large group.
Even if a group of 3 people was sufficient, the presence of only one weapon, the knife held by Mr. Vassell, causes the defense's argument to fail the second test. There cannot be a consistent or deliberate failure to prosecute the "victims" because it is impossible to charge them under the same law.
The Tactics
Why would defense counsel put this argument forth? Because Mr. Vassell is in a world of hurt. By the defense's own statement of facts after the initial conflict Mr. Vassell picked up a knife, carried it to the location of the second conflict, and drew it before he was physically attacked.
I don't know Massachusetts case law, but if it is anything like Virginia, the use of fists (as the victims did) carries with it a inference that the intent is not lethal while the use of a knife (as Mr. Vassell did) carries the opposite inference. When Mr. Vassell brought and drew a knife he unilaterally escalated to the use of lethal force. On the facts, it appears that Mr. Vassell is guilty of that which he is charged.
On the other hand, Paracios also states that in Massachusetts
If the defendant's charge of racial profiling is not established prior to trial, it may not subsequently be raised again as a defense. However, we distinguish between racial profiling and racial bias. Denial of the motion to dismiss does not by itself eliminate the right of either party to challenge at trial the testimony of a witness on the ground of racial bias. The right to cross-examine a witness regarding racial bias is not unfettered, however, and the judge may reasonably limit the extent and scope of cross- examination on this, as on any other, subject. Where the defendant makes no plausible showing to support his claim of racial bias, the judge may prohibit reference to a witness's alleged bias altogether.In other words, the defense might not have the law or facts of the second conflict on its side, but it has all sorts of impeachment evidence which it could use to make the prosecution's "victims" look very bad and damage law enforcement witnesses as well. And it's just demonstrated that to the prosecution.
This motion strikes me as a gambit played as part of negotiating a plea. The defense is showing that it will move forward with self defense bolstered by the ability to impeach the victims to shreds. Still, it has to take into account the fact that Mr. Vassell brought a knife to a fist fight and drew it first. In the end, I'd be surprised if this went to trial because of uncertainty on both sides (unless it has become so blown up that one side or the other won't back down or the facts are even more anti-defendant than the motion lets on).
19 April 2009
How Long Can a Judge Keep Someone Under Threat of Imprisonment?
As a comment on another post, Tony asks:
[2] A defendant can have his sentence suspended for as long as the judge determines to be "a reasonable time, having due regard to the gravity of the offense." Va Code § 19.2-303.1. In other words, if the judge decides an offender's brandishing a firearm misdemeanor needs to have the sentence suspended for a period of 20 years, the judge can so order.
[3] Indefinite probation usually means that probation shall end at the discretion of the probation officer after certain conditions have been met. I couldn't find any limits to the length of probation, but logic would seem to indicate it could go no longer than the period during which the sentence is suspended.
[4] A common practice in Virginia courts is to usually limit most misdemeanors to a single year period of time suspended and in cases that the judge sees as more egregious three years of time suspended. I cannot find any statutory reason for this and suspect it may be ensconced in Virginia law via Smith v. Underwood, 1985, Va. App. No. 0316-85. In this decision a habeas was rejected because it was based upon new claims, but the court also accepted, without any discussion, 3 years time suspended on a misdemeanor.
[7] If the judge is not specific about the length of time for the suspension it defaults to the length of the maximum potential sentence for the crime (ie: 1 year for petit larceny & 20 years for grand larceny). § 19.2-306. However, a judge can extend both probation and suspension. Under § 19.2-306(C), if a judge "finds good cause to believe that the defendant has violated the terms of suspension" the suspension is revoked and the sentence is imposed. However, the judge can resuspend the sentence - leaving him the option of setting a new length of time for the suspension. Under § 19.2-304, the judge can alter probation upon the convening of a hearing; as the statute states no other conditions, it appears that the judge has complete discretion in this.
Maybe some one can help me understand something as follows. (1) Can a defendant be placed on probation for a term exceeding what the original sentence would have been,i.e. (2) in a class 1 misdemeanor can the defendant be put on probation for three years when the sentence is 12 months with 11 suspended for three years, with "indefinite" local probation? and (3) how long would the [indefinite] probation be, three years or 12 months?[1]It's an interesting question and the waters are muddied by the fact that there are two separate things which occur under Virginia law, the period of probation and the period of the suspended sentence. As best I can define the two, the period of a suspended sentence is how long an offender can be hauled back into court to receive time "for any cause the court deems sufficient" (§ 19.2-306) and probation is the period of time the offender has someone specifically assigned to be her caretaker. Unfortunately, in both statutes and judicial decisions, there has been a loose usage of these terms. Sometimes they are used in parralell, sometimes they have separate meanings, and sometimes they seem to be used as synonyms. It confuses things.
[2] A defendant can have his sentence suspended for as long as the judge determines to be "a reasonable time, having due regard to the gravity of the offense." Va Code § 19.2-303.1. In other words, if the judge decides an offender's brandishing a firearm misdemeanor needs to have the sentence suspended for a period of 20 years, the judge can so order.
[3] Indefinite probation usually means that probation shall end at the discretion of the probation officer after certain conditions have been met. I couldn't find any limits to the length of probation, but logic would seem to indicate it could go no longer than the period during which the sentence is suspended.
[4] A common practice in Virginia courts is to usually limit most misdemeanors to a single year period of time suspended and in cases that the judge sees as more egregious three years of time suspended. I cannot find any statutory reason for this and suspect it may be ensconced in Virginia law via Smith v. Underwood, 1985, Va. App. No. 0316-85. In this decision a habeas was rejected because it was based upon new claims, but the court also accepted, without any discussion, 3 years time suspended on a misdemeanor.
[5] Furthermore, we find no ambiguity in the June 3, 1982, sentencing order that would support Smith's claim that the misdemeanor sentence suspension could not be revoked. Its terms are clear. Both the felony and misdemeanor sentences were suspended and Smith was placed on probation for a period of three years.[6] Nevertheless, nothing in the statutes or any cases I've seen seems to limit the length of time a person can have his sentence suspended if the judge is specific about the length.
[7] If the judge is not specific about the length of time for the suspension it defaults to the length of the maximum potential sentence for the crime (ie: 1 year for petit larceny & 20 years for grand larceny). § 19.2-306. However, a judge can extend both probation and suspension. Under § 19.2-306(C), if a judge "finds good cause to believe that the defendant has violated the terms of suspension" the suspension is revoked and the sentence is imposed. However, the judge can resuspend the sentence - leaving him the option of setting a new length of time for the suspension. Under § 19.2-304, the judge can alter probation upon the convening of a hearing; as the statute states no other conditions, it appears that the judge has complete discretion in this.
14 April 2009
13 April 2009
Who Were the Colombine Kids Really?
"They weren't goths or loners.
They . . . weren't in the "Trenchcoat Mafia," disaffected videogamers who wore cowboy dusters. The killings ignited a national debate over bullying, but the record now shows Eric Harris and Dylan Klebold hadn't been bullied — in fact, they had bragged in diaries about picking on freshmen and "fags."
Their rampage put schools on alert for "enemies lists" made by troubled students, but the enemies on their list had graduated from Columbine a year earlier. Contrary to early reports, Harris and Klebold weren't on antidepressant medication and didn't target jocks, blacks or Christians, police now say, citing the killers' journals and witness accounts. That story about a student being shot in the head after she said she believed in God? Never happened, the FBI says now."
<much more>
They . . . weren't in the "Trenchcoat Mafia," disaffected videogamers who wore cowboy dusters. The killings ignited a national debate over bullying, but the record now shows Eric Harris and Dylan Klebold hadn't been bullied — in fact, they had bragged in diaries about picking on freshmen and "fags."
Their rampage put schools on alert for "enemies lists" made by troubled students, but the enemies on their list had graduated from Columbine a year earlier. Contrary to early reports, Harris and Klebold weren't on antidepressant medication and didn't target jocks, blacks or Christians, police now say, citing the killers' journals and witness accounts. That story about a student being shot in the head after she said she believed in God? Never happened, the FBI says now."
<much more>
Stare Decisis:
Where Should the First Thought Come From?
As long as statutes are written there will be two truths which require judicial decisions. First, there will be ambiguities written into the statutes/constitutions (textual ambiguity). Second, circumstances will arise which may, or may not, fall under a particular statute or constitutional clause (situational ambiguity). It follows that, if we are to be consistent, once a judicial decision has been made clearing up the difficulty this interpretation of the law should be universal and constant (so long as the decision is appropriate to the language of the pertinent statute/constitution1).
[1] The best method of interpreting a statute is to use textual interpretation doctrines such as the Rule of Lenity (in criminal cases), expresio unius est exclusio alterius, noscitur a sociis, or ejusdem generis. This type of interpretation gives the most honest reading of a statute.
[2] In the few cases when the meaning of a statute/constitutional provision cannot be determined textually, historical meaning and legislative meaning analyses should be the next step. Historical meaning would look toward dictionaries or writings of a particular time to determine the meaning of the ambiguous word or phrase. Legislative meaning would primarily look toward other statutes with similar phrasing to clear up the ambiguous wording.
[3] If this fails, the next step is historical intent or legislative intent. This is the point at which interpretative tools become shaky. Historical intent is notorious because it's often one sided and/or incomplete. No one knows what every single member of the constitutional convention intended and it's unlikely that any historical analysis has proven what even a majority of them intended. Legislative intent suffers the same flaw; it's near impossible to prove what a majority of Congress thought about a statute passed as part of a two hundred page omnibus bill.
[4] In the very few cases which get through all the above, there's the appeal to other authority. In the past this might have been to the Great Thinkers: The Philosopher, Aquinas, Maimonides, Averroes, Hume, Kant, Locke, Burke &cetera. In modern times this is more likely to take the form of decisions by foreign courts. While both of these can shore up a decision, they are the shakiest form of interpretation. This is primarily because they do not have any anchors in the American legal system. We should always be suspicious that these sources are appealed to because American jurisprudence leans the other way and some source is needed to allow the judge to reach the conclusion he wants to reach. After all, how many people in modern times receive an education to the level that they even know who Averroes was, much less can quote his philosophy? And, why would an American judge know about an opinion published in Australia 7 years ago?2
Personally, I'd like to see a lot less appeal to authority in our courts. Beyond steps [1] and [2] above, it all looks like the judge has come to a decision and is just looking for justification. Assuming a previously unresolved ambiguity, it should be perfectly acceptable to state that ambiguity, state why the ambiguity cannot be cleared up by [1] and [2], and then set out the court's decision. If it is consistent with statute then good precedent has been set.3
1 The great flaw of deference is when it reaches a near mystical level and is slavishly followed no matter how out of touch a decision may be with the actual language of a statute.
2 The Australian Supreme Court could publish the most amazing, insightful, breath-takingly wonderful piece of reasoning on the right to free speech tomorrow and I might, MIGHT, find out about it because I get ABC's feed on my Twitter account. It's not exactly easy to research case law from another country.
3 Yes, I know this will never happen. Lawyers are mistaught from their first day in law school to over-cite, to always have a source. Original, uncopied thought is the bugaboo we are all taught to fear.
[1] The best method of interpreting a statute is to use textual interpretation doctrines such as the Rule of Lenity (in criminal cases), expresio unius est exclusio alterius, noscitur a sociis, or ejusdem generis. This type of interpretation gives the most honest reading of a statute.
[2] In the few cases when the meaning of a statute/constitutional provision cannot be determined textually, historical meaning and legislative meaning analyses should be the next step. Historical meaning would look toward dictionaries or writings of a particular time to determine the meaning of the ambiguous word or phrase. Legislative meaning would primarily look toward other statutes with similar phrasing to clear up the ambiguous wording.
[3] If this fails, the next step is historical intent or legislative intent. This is the point at which interpretative tools become shaky. Historical intent is notorious because it's often one sided and/or incomplete. No one knows what every single member of the constitutional convention intended and it's unlikely that any historical analysis has proven what even a majority of them intended. Legislative intent suffers the same flaw; it's near impossible to prove what a majority of Congress thought about a statute passed as part of a two hundred page omnibus bill.
[4] In the very few cases which get through all the above, there's the appeal to other authority. In the past this might have been to the Great Thinkers: The Philosopher, Aquinas, Maimonides, Averroes, Hume, Kant, Locke, Burke &cetera. In modern times this is more likely to take the form of decisions by foreign courts. While both of these can shore up a decision, they are the shakiest form of interpretation. This is primarily because they do not have any anchors in the American legal system. We should always be suspicious that these sources are appealed to because American jurisprudence leans the other way and some source is needed to allow the judge to reach the conclusion he wants to reach. After all, how many people in modern times receive an education to the level that they even know who Averroes was, much less can quote his philosophy? And, why would an American judge know about an opinion published in Australia 7 years ago?2
Personally, I'd like to see a lot less appeal to authority in our courts. Beyond steps [1] and [2] above, it all looks like the judge has come to a decision and is just looking for justification. Assuming a previously unresolved ambiguity, it should be perfectly acceptable to state that ambiguity, state why the ambiguity cannot be cleared up by [1] and [2], and then set out the court's decision. If it is consistent with statute then good precedent has been set.3
1 The great flaw of deference is when it reaches a near mystical level and is slavishly followed no matter how out of touch a decision may be with the actual language of a statute.
2 The Australian Supreme Court could publish the most amazing, insightful, breath-takingly wonderful piece of reasoning on the right to free speech tomorrow and I might, MIGHT, find out about it because I get ABC's feed on my Twitter account. It's not exactly easy to research case law from another country.
3 Yes, I know this will never happen. Lawyers are mistaught from their first day in law school to over-cite, to always have a source. Original, uncopied thought is the bugaboo we are all taught to fear.
09 April 2009
Interesting Question
Here's an interesting question which came up in court yesterday.
Under Brady v. Maryland et al, the prosecution is required to to turn over evidence which is exculpatory or impeachment material. However, what if there is no doubt the defendant did the crime (uncontested) and the defendant is trying to get evidence under Brady which would be used solely in an affirmative defense?
I did a quick bit of research yesterday and the cases clearly state that there is no obligation to turn over such evidence prior to a guilty plea. Still, that begs the question, is it constitutionally required at all? I never could find a case which specifed one way or the other.
Anybody know a case on point?
Addendum: For some unknown reason, Blogger isn't allowing me to put comments on this post. So, I thought I'd post them here.
ParatrooperJJ: In general, I agree that if it will not endanger third parties or other investigations (& any other such caveat which is slipping my mind at the moment), the prosecutor should share all evidence possible. However, consider a pro se defendant who is a felon caught with a firearm. He does not deny possession. Rather, he informs the court that he will be raising a duress/society made me do it/it's a dangerous world affirmative defense. In accord with his theory, he files for pretty much every record he thinks the county has related to violent crime over the last ten years (indictments, orders of conviction, copies of plea agreements, etc.). This is clearly outside of allowed discovery in Virginia, but the pro se argues it should be allowed under Brady. Judge won't go that far, but considers ordering 5 years of orders of convictions. (facts are made up out of whole cloth, but similar to case yesterday)
This doesn't impeach anybody or tend to prove he didn't possess the firearm. Should the government be obligated? If so, what is the constitutional basis and where do you draw the line?
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Anon: Yes, an affirmative defense is a defense. However, it's a "Yeah, but . . ." defense; a defense wherein the act the prosecutor is alleging is admitted. If there was anything tending to negate the act the prosecution would clearly be required to turn it over. However, nothing tending to prove an affirmative defense negates the act. Therefore, the question is whether the prosecution is required to turn over evidence which does not tend to disprove the act because the evidence may be consistant with an affirmative defense the defendant may present at trial.
Under Brady v. Maryland et al, the prosecution is required to to turn over evidence which is exculpatory or impeachment material. However, what if there is no doubt the defendant did the crime (uncontested) and the defendant is trying to get evidence under Brady which would be used solely in an affirmative defense?
I did a quick bit of research yesterday and the cases clearly state that there is no obligation to turn over such evidence prior to a guilty plea. Still, that begs the question, is it constitutionally required at all? I never could find a case which specifed one way or the other.
Anybody know a case on point?
Addendum: For some unknown reason, Blogger isn't allowing me to put comments on this post. So, I thought I'd post them here.
ParatrooperJJ: In general, I agree that if it will not endanger third parties or other investigations (& any other such caveat which is slipping my mind at the moment), the prosecutor should share all evidence possible. However, consider a pro se defendant who is a felon caught with a firearm. He does not deny possession. Rather, he informs the court that he will be raising a duress/society made me do it/it's a dangerous world affirmative defense. In accord with his theory, he files for pretty much every record he thinks the county has related to violent crime over the last ten years (indictments, orders of conviction, copies of plea agreements, etc.). This is clearly outside of allowed discovery in Virginia, but the pro se argues it should be allowed under Brady. Judge won't go that far, but considers ordering 5 years of orders of convictions. (facts are made up out of whole cloth, but similar to case yesterday)
This doesn't impeach anybody or tend to prove he didn't possess the firearm. Should the government be obligated? If so, what is the constitutional basis and where do you draw the line?
-------------
Anon: Yes, an affirmative defense is a defense. However, it's a "Yeah, but . . ." defense; a defense wherein the act the prosecutor is alleging is admitted. If there was anything tending to negate the act the prosecution would clearly be required to turn it over. However, nothing tending to prove an affirmative defense negates the act. Therefore, the question is whether the prosecution is required to turn over evidence which does not tend to disprove the act because the evidence may be consistant with an affirmative defense the defendant may present at trial.
08 April 2009
What people are looking for when they come to CrimLaw
Click on the picture in order to be better able to read it. These search queries are a little different than I normally see. Usually the three things which get the biggest hits are methadone (because of pill pics I once uploaded), malicious wounding, and the Bluegrass Conspiracy.
07 April 2009
Misprision of a Felony:
Failing to Report a Felony
I was prepping up cases yesterday and Mark started tweeting about a case, bringing up misprision (yes, that's the correct spelling). He'd been dealing with it in federal court, where it's a 3 year felony per 18 USC 4).
To begin with misprision of a felony is a common law crime in Virginia. Of course, this is no problem in the Commonwealth.
However, none of the mentions define misprision itself. The majority of the cases are older and hold up misprision as something everyone knows in order to define accessories against it. Even the case which is most important in confirming that misprision of a felony is still good law in Virginia, Juniper v. Commonwealth, 2006, No. 051423, only mentions the law as a reason a witness was given immunity by the prosecution; it never offers a definition.
So, where do we find a definition? Well, we go where every good American legal theoretician goes - Blackstone.
Although Blackstone sets out that misprision of felony tops out at 12 months for regular citizens (a misdemeanor), there is no set punishment for misprision of felony under Virginia statutes so the punishment defaults to a class 1 misdemeanor (max 12 months &/or $2,500).
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.Admittedly, I did not know there is a federal crime of misprision of a felony. In fact, I don't think I'd heard of misprision since law school. So, I got curious and went looking to see if misprision of a felony is still good law in Virginia.
To begin with misprision of a felony is a common law crime in Virginia. Of course, this is no problem in the Commonwealth.
§ 1-200. The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.No statute has been passed altering the common law in any way. In fact, the only statute mentioning misprision is referring to misprision of treason - an entirely different crime. As well, the case law is littered with cases concerning misprision of a clerk, which isn't helpful at all. Nevertheless, there are some mentions of misprision of a felony.
However, none of the mentions define misprision itself. The majority of the cases are older and hold up misprision as something everyone knows in order to define accessories against it. Even the case which is most important in confirming that misprision of a felony is still good law in Virginia, Juniper v. Commonwealth, 2006, No. 051423, only mentions the law as a reason a witness was given immunity by the prosecution; it never offers a definition.
When questioned about the events on the day of the murders, Murray answered, "Your Honor, I plead the Fifth." The trial court called a recess and outside of the presence of the jury, the Commonwealth stated its intention to offer Murray immunity. 10Thus we see that in 2006 misprision of a felony is still a part of Virginia law, but we still don't have a definition.
. . .
10 The Commonwealth determined Murray could incriminate himself as an accessory after the fact or give information that could lead to a charge of misprision of a felony offense.
So, where do we find a definition? Well, we go where every good American legal theoretician goes - Blackstone.
XI. Analogous to the preceding offence is misprision of felony ie the concealment of a felony which a man knows of but never assented to for if he assented to it this makes him either principal or accessory. The punishment of this misprision in a public officer by the statute Westrn 1 3 Edw 1 c 9 is imprisonment for a year and a day in a common person imprisonment for a less discretionary time and in both fine and ransom at the pleasure of the crown which pleasure must be observed once for all not to signify any extrajudicial will of the sovereign but such as is declared by his representatives the judges in his courts of justice voluntas régis in curiâ non in camera.Concealment in this case, does not mean actively hiding something. Instead, as is made clearer in the section on misprision of treason, this type of concealment is merely a failure to report as soon as possible.
This concealment becomes criminal if the party apprised of the [act] does not as soon as conveniently may be reveal it to some judge of assize or justice of the peace.Basically, the criminal act in misprision of felony is seeing a felony and not telling a law enforcement official as soon as possible.
Although Blackstone sets out that misprision of felony tops out at 12 months for regular citizens (a misdemeanor), there is no set punishment for misprision of felony under Virginia statutes so the punishment defaults to a class 1 misdemeanor (max 12 months &/or $2,500).
§ 18.2-12. A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor.Just remember folks, the next time you see a felony in Virginia and don't report it, it could be you spending time in jail.
06 April 2009
Southland:
MTV Meets Hill Street Blues
TV goes thru cycles. Of late, all the "real", meant to win awards TV shows seem to have been Doctor/hospital shows. That doesn't mean they've stopped trying to make police dramas (CSI's, Law&Orders, etc.), just that none of them have really reached the pinnacle. However, the doctor drama seems to have run its course and now the field is clear for the next Hill Street Blues.
However, I don't think Southland is going to be the one. Now, I've only seen the first episode on Hulu. Still, I'm not sure that the flaws I see can be overcome.
There are three stories crammed into a single hour format. 1st is the rich boy, rookie officer who is having a terrible day as he tries to earn his final approval to get off probation from a hard-nosed veteran of the force, who isn't giving an inch (and seems to turn out to be gay in the end). 2d is the story of a couple detectives trying to solve the shooting of a kid by some bangers (which eventually merges into the first). 3d is the story of a detective trying to figure out what has happened to a little girl who has disappeared. It was one story too many; the third should have been let go to give the other two some room to develop.
The filming is in what I'd refer to as MTV style (who knows if MTV still does this - I ain't watched in several years). The picture is done via unsteady cam in an obvious attempt to be "real." The positioning and zoom of the camera also seem to be an attempt to say "See, we're filming this like a video camera would." I'd hoped that this fad was fading, because it is just annoying; however, for now it still lives. Only one scene really works with this style and it's over in about 30 seconds.
As with most pilots, too much was crammed into too short a time period. We can hope that as the season progresses the story will spread out, slow down, rely less on gimmicky filming. However, in my bones I just don't feel it coming. I've got a bad feeling this is going to stay a show shot for people with 10 second attention spans.
1 give this show a provisional rating of average (3 out of 5).
However, I don't think Southland is going to be the one. Now, I've only seen the first episode on Hulu. Still, I'm not sure that the flaws I see can be overcome.
There are three stories crammed into a single hour format. 1st is the rich boy, rookie officer who is having a terrible day as he tries to earn his final approval to get off probation from a hard-nosed veteran of the force, who isn't giving an inch (and seems to turn out to be gay in the end). 2d is the story of a couple detectives trying to solve the shooting of a kid by some bangers (which eventually merges into the first). 3d is the story of a detective trying to figure out what has happened to a little girl who has disappeared. It was one story too many; the third should have been let go to give the other two some room to develop.
The filming is in what I'd refer to as MTV style (who knows if MTV still does this - I ain't watched in several years). The picture is done via unsteady cam in an obvious attempt to be "real." The positioning and zoom of the camera also seem to be an attempt to say "See, we're filming this like a video camera would." I'd hoped that this fad was fading, because it is just annoying; however, for now it still lives. Only one scene really works with this style and it's over in about 30 seconds.
As with most pilots, too much was crammed into too short a time period. We can hope that as the season progresses the story will spread out, slow down, rely less on gimmicky filming. However, in my bones I just don't feel it coming. I've got a bad feeling this is going to stay a show shot for people with 10 second attention spans.
1 give this show a provisional rating of average (3 out of 5).
04 April 2009
03 April 2009
Wisdom in 140 Characters or Less
#LawsOfCriminalDefense
People on Twitter are tweeting about the truths of practicing criminal defense. I've harvested some of the best. Go to Twitter and look at #LawsOfCriminalDefense (and follow the people who make the best comments).
Prosecutor:
No, the prosecutor has nothing better to do, now let's move on.
Dear Client, Yes, the prosecution has been out to get you from the start. No, that is not a good appellate issue.
Prosecutor: If I'm being nice to you, I'm playing you.
Client:
Including your client and you, there is one person in the courtroom trying to keep your client out of prison.
"The b!tch aint showing up?" You mean her, in the third row?
Asking me what happens if the witness doesn't show up worries me.
That you "can't go to jail" doesn't affect whether you will.
Going to trial because you can't go to jail is like jumping off a cliff because you can't be pushed.
No, it doesn't matter that they didn't Mirandize you.
If you want a new client to lie to you, ask him about his criminal record.
Never look a gift horse in the mouth. That's your client's job.
Your friends cousin knows a cop on the force? Your boss knows the judges wife? Awesome! Now we win.
Yes, if the case gets dismissed I get to keep the fee.
A criminal defense lawyer who guarantees a result is lying or bribing someone.
Dear Client, Just because you are bi-polar does not mean that you have free reign to commit a criminal offense.
The clients I've taken for free or below cost are the most demanding and unreasonable.
No, we're not suing the cops.
Let's win the criminal case first. Then I'll refer you to a civil rights plaintiff's lawyer.
Representing celebrities is a great honor, just ask them.
Just because I represent doesn't mean I have to believe you.
Dear client: If a 12 year old on the Web wants to have sex with you, it's an FBI agent. I promise.
Telling me what your friend thinks is like talking about your ex girlfriends on a date.
Dear Client, I'm not your life coach. I'm the cold shower of reality that rains on your egocentric parade.
If you just want to talk to me over the phone, you're shopping, not hiring.
No, it doesn't matter that the handcuffs hurt your wrists.
It is your client that is on trial, not you.
Dear Client, It is not a good thing that you & the Judge are on a first name basis.
A jury of your peers does not mean that your friends are on the panel.
You're not unhappy with the PD, you're unhappy with the plea offer he got.
Telling me you're going to hire a private lawyer is not threat but usually a relief.
Never represent someone you're having sex with.
And where did the police officer take you after he gave you all this advice? Exactly.
Tactics:
If you're going to "win it in closing," plead guilty.
There is nothing more difficult than cross-examining the victim of a sex crime.
An acquittal is not the only way to get a "win" in this line of business. A nolle prosequi is just as good.
Just because you think the victim is a lying piece of sh!t does not mean the jury has to.
Nobody ever went to prison for not talking to the cops
A continuance is as good as an acquittal, for as long as it lasts.
No trial is a sure thing for either side.
God:
When you roll out, "God is on my side," you're probably forgetting about the victim.
I appreciate that you put your faith in God, but he's going to need some expert help on this particular case.
Dear Client, Most of Jesus' disciples met their end in prison. So, you think he is going to save your @ss?
Prosecutor:
No, the prosecutor has nothing better to do, now let's move on.
Dear Client, Yes, the prosecution has been out to get you from the start. No, that is not a good appellate issue.
Prosecutor: If I'm being nice to you, I'm playing you.
Client:
Including your client and you, there is one person in the courtroom trying to keep your client out of prison.
"The b!tch aint showing up?" You mean her, in the third row?
Asking me what happens if the witness doesn't show up worries me.
That you "can't go to jail" doesn't affect whether you will.
Going to trial because you can't go to jail is like jumping off a cliff because you can't be pushed.
No, it doesn't matter that they didn't Mirandize you.
If you want a new client to lie to you, ask him about his criminal record.
Never look a gift horse in the mouth. That's your client's job.
Your friends cousin knows a cop on the force? Your boss knows the judges wife? Awesome! Now we win.
Yes, if the case gets dismissed I get to keep the fee.
A criminal defense lawyer who guarantees a result is lying or bribing someone.
Dear Client, Just because you are bi-polar does not mean that you have free reign to commit a criminal offense.
The clients I've taken for free or below cost are the most demanding and unreasonable.
No, we're not suing the cops.
Let's win the criminal case first. Then I'll refer you to a civil rights plaintiff's lawyer.
Representing celebrities is a great honor, just ask them.
Just because I represent doesn't mean I have to believe you.
Dear client: If a 12 year old on the Web wants to have sex with you, it's an FBI agent. I promise.
Telling me what your friend thinks is like talking about your ex girlfriends on a date.
Dear Client, I'm not your life coach. I'm the cold shower of reality that rains on your egocentric parade.
If you just want to talk to me over the phone, you're shopping, not hiring.
No, it doesn't matter that the handcuffs hurt your wrists.
It is your client that is on trial, not you.
Dear Client, It is not a good thing that you & the Judge are on a first name basis.
A jury of your peers does not mean that your friends are on the panel.
You're not unhappy with the PD, you're unhappy with the plea offer he got.
Telling me you're going to hire a private lawyer is not threat but usually a relief.
Never represent someone you're having sex with.
And where did the police officer take you after he gave you all this advice? Exactly.
Tactics:
If you're going to "win it in closing," plead guilty.
There is nothing more difficult than cross-examining the victim of a sex crime.
An acquittal is not the only way to get a "win" in this line of business. A nolle prosequi is just as good.
Just because you think the victim is a lying piece of sh!t does not mean the jury has to.
Nobody ever went to prison for not talking to the cops
A continuance is as good as an acquittal, for as long as it lasts.
No trial is a sure thing for either side.
God:
When you roll out, "God is on my side," you're probably forgetting about the victim.
I appreciate that you put your faith in God, but he's going to need some expert help on this particular case.
Dear Client, Most of Jesus' disciples met their end in prison. So, you think he is going to save your @ss?
02 April 2009
Virginian Judicial Selection
There is no truly good way to select judges. There are direct elections, which everyone is concerned about because they cause the judge to worry about votes more than the law. There are political selections with life tenure, which lead to a sudden lack of memory and inability to discuss legal theory on the potential judge's part until after the nomination process is complete and thereafter leave the judge/justice entirely without any without any check when he turns out to be an incompetent or worse. There's judicial selection by committee, which just screams "behind closed doors, good ole boy" (the "Missouri Plan": the worst of all selection plans lumped into one).
In Virginia, we have political selection without life tenure. Every judge is selected by the General Assembly and periodically reappointed by that same august body. As someone who has observed this process in action, I see three possible flaws:
(1) The potential for nominees to be not based upon "not what you know, but who you know."
This comes and goes. Sometimes the General Assembly is willing to take the advice of the local Bar and sometimes it's not. Knowing an Assembly member can never hurt someone's chances of becoming a judge. On the other hand, no member is going to purposefully appoint an incompetent or lunatic judge if he can help it. You see, the Assembly member has to run for re-election himself and doesn't have any desire to place an anchor around his own neck.
(2) The potential for judges to have to enforce laws in a manner out of sync with the locality because the General Assembly is strongly influenced by other parts of the Commonwealth or by influential lobbying groups.
If the 10 most populous counties in Virginia are strongly anti-firearm, but the locality the judge is in is pro-firearm, where will the judge come down? After all, he has to face down all those Delegates and Senators (perhaps a majority) from anti-firearm counties. On the other hand, if the pro-firearm lobby is extremely strong in the General Assembly (out of proportion to the population) what does a judge in one of the 10 counties do, knowing that he will face Delegates and Senators influenced by this group?
(3) The potential for judges to be appointed by the General Assembly who are not appropriate to the jurisdiction.
Assume one party gets a large majority in the General Assembly, but the locality strongly favors the other party. There's a strong possibility that the General Assembly is going to appoint someone more in tune with its sensibilities than those of the locality.
---------
I've watched the Virginia system in action for a while now and, warts and all, think it's a fairly good system. It's certainly better than the Missouri Plan or the Life Tenure plan and has merits which favor it in debates against a direct election system. In point of fact, members such as Delegate Albo have made efforts to improve the system further thru the (now defunct) judicial review system. Could it use improvement? Sure it could. Every system could use improvement.
Still, I've watched the system work in regards to poor judges. In the 8+ years I've been practicing, I've seen a lawyer rebellion lead to a judge not being re-appointed. I've seen a judge removed for cause from his seat. This year, I've seen citizen pressure lead to a judge being re-appointed only after he sent a letter to the Chief Justice stating he was retiring a year after his re-appointment. In this same year, I saw the General Assembly refuse to remove a judge after a clearly partisan attack against him (as opposed to real questions as to his judicial abilities). So, it appears that the system is working.
In Virginia, we have political selection without life tenure. Every judge is selected by the General Assembly and periodically reappointed by that same august body. As someone who has observed this process in action, I see three possible flaws:
(1) The potential for nominees to be not based upon "not what you know, but who you know."
This comes and goes. Sometimes the General Assembly is willing to take the advice of the local Bar and sometimes it's not. Knowing an Assembly member can never hurt someone's chances of becoming a judge. On the other hand, no member is going to purposefully appoint an incompetent or lunatic judge if he can help it. You see, the Assembly member has to run for re-election himself and doesn't have any desire to place an anchor around his own neck.
(2) The potential for judges to have to enforce laws in a manner out of sync with the locality because the General Assembly is strongly influenced by other parts of the Commonwealth or by influential lobbying groups.
If the 10 most populous counties in Virginia are strongly anti-firearm, but the locality the judge is in is pro-firearm, where will the judge come down? After all, he has to face down all those Delegates and Senators (perhaps a majority) from anti-firearm counties. On the other hand, if the pro-firearm lobby is extremely strong in the General Assembly (out of proportion to the population) what does a judge in one of the 10 counties do, knowing that he will face Delegates and Senators influenced by this group?
(3) The potential for judges to be appointed by the General Assembly who are not appropriate to the jurisdiction.
Assume one party gets a large majority in the General Assembly, but the locality strongly favors the other party. There's a strong possibility that the General Assembly is going to appoint someone more in tune with its sensibilities than those of the locality.
---------
I've watched the Virginia system in action for a while now and, warts and all, think it's a fairly good system. It's certainly better than the Missouri Plan or the Life Tenure plan and has merits which favor it in debates against a direct election system. In point of fact, members such as Delegate Albo have made efforts to improve the system further thru the (now defunct) judicial review system. Could it use improvement? Sure it could. Every system could use improvement.
Still, I've watched the system work in regards to poor judges. In the 8+ years I've been practicing, I've seen a lawyer rebellion lead to a judge not being re-appointed. I've seen a judge removed for cause from his seat. This year, I've seen citizen pressure lead to a judge being re-appointed only after he sent a letter to the Chief Justice stating he was retiring a year after his re-appointment. In this same year, I saw the General Assembly refuse to remove a judge after a clearly partisan attack against him (as opposed to real questions as to his judicial abilities). So, it appears that the system is working.
30 March 2009
More on Posner & Strict Liability
Tim Lynch dropped me an email concerning my review of part of his book "In the Name of Justice" (his blog post is here). He comments:
As well, when I speak of the wisdom of ignorance I'm not just speaking of Posner. In fact, I'm mostly speaking of the emotional basis of the statutory rape argument. Statutory rape, because of its emotional, irrational trigger - harm against the young - is always the strongest case for strict liability. If there was ever anything someone would be willing to sacrifice an innocent in order to protect its his daughter. No thought need be applied. Protect. Period.
Try that same rationale with the truck driver scenario and people will look at you like you are stoned. "You're saying each and every UPS driver is committing a felony when he delivers the drugs that are shipped thru UPS without his knowledge Really? You're serious?" And you'll notice that the government isn't exactly going around and arresting package delivery drivers in job lots.
Gotta go to work. Hope to further discuss this tonight as to other, non-ignorance reasons why strict liability is wrong.
Btw, thinking it over some more, I'm not quite sure we can say that Posner is oblivious to the unjust cases and is therefore wrong. He's a smart guy and may just really believe that the "benefits" outweigh the "costs." We can say he's wrong but for a different reason. See p. 196 note 31.This, I'm certain, is a comment on my "wisdom of ignorance" appellation to statutory rape strict liability argument. Let me clarify this. I don't believe that Judge Posner is an ignoramus. I do believe, and this is a conceit on my part (probably shared with most criminal law attorneys), that Judge Posner has an academic, theoretical knowledge as opposed to an on the ground, knowing it in your bones, fighting the fight, experiential knowledge. It's all well and good to stand on high and decide that you will sacrifice 5 people who did nothing immoral in order to catch 20 who did and discourage 100 who might. Yet, if you're the prosecutor who faces a command from your legislature to sacrifice 5 innocents, because the steer clear function of strict liability doesn't work if you don't, or the defense attorney watching your innocent being sacrificed "for the greater good" it's despicable.
As well, when I speak of the wisdom of ignorance I'm not just speaking of Posner. In fact, I'm mostly speaking of the emotional basis of the statutory rape argument. Statutory rape, because of its emotional, irrational trigger - harm against the young - is always the strongest case for strict liability. If there was ever anything someone would be willing to sacrifice an innocent in order to protect its his daughter. No thought need be applied. Protect. Period.
Try that same rationale with the truck driver scenario and people will look at you like you are stoned. "You're saying each and every UPS driver is committing a felony when he delivers the drugs that are shipped thru UPS without his knowledge Really? You're serious?" And you'll notice that the government isn't exactly going around and arresting package delivery drivers in job lots.
Gotta go to work. Hope to further discuss this tonight as to other, non-ignorance reasons why strict liability is wrong.
29 March 2009
Introducing "Little Red"
Not sure what kind of dog he is, but "Little Red" here adopted into the family last week. He's 15-20 pounds, has a little bushy mane, and is young. I'm hoping he's still got some growing to do since his paws are big for his body, but I suspect he'll max out at maybe 30 pounds. The little guy is fearless and on the first night stood nose to nose with my hound a couple times (both growling) until I broke them up (my lab just ignores him).
25 March 2009
In the Name of Justice: Posner v. Hart
{1}About 3 weeks ago, CATO sent me a copy of "In the Name of Justice" so that I could read through it and comment here on CrimLaw. It's a series of replies to Henry Hart's 1958 article "The Aims of the Criminal Law." As such, it's difficult to review the book as a whole, so I thought I'd discuss Professor Hart's article and Judge Posner's reaction.
Hart
{2}Hart is an idealist. His overarching ideal is that the purpose of criminal law is to instruct people as to what society views as the absolutes of proper behavior (this far and no further). His definition of criminal law is "community condemnation of antisocial conduct" combined with "the imposition of unpleasant physical consequences." He walks a line between deterrence and rehabilitation, rejecting both as the ultimate goal of criminal law. Deterrence is rejected as negative while the purpose of the law is positive; a person is to make his own moral choices and the knowledge of the consequences of his acts shall train him to make the proper choices. Rehabilitation is rejected because it views the offender as someone who is defective and removes the responsibility of his choices from him; one cannot make moral choices without being responsible for the act and consequences flowing from that action. Succinctly, criminal law lays down the minimal societal parameters within which moral actors can, of their own free will, choose to act and, if they fail in their choice, have knowledge of the consequences they face.
{3}Hart posits two corollaries to his theory. The first is that strict liability has no place in the criminal law. This boils down to lack of knowledge and thus lack of intent. A moral actor cannot make a free will choice if he does not know there is a choice to be made. Hence, the entire purpose of the criminal law is made void.
{4}The second corollary is that punishment should be no more severe than necessary. It should both express the community's condemnation and be tailored to returning the offender to society as soon as possible as "responsible and functioning member of the community."
Posner
{5}Posner is of a different stripe. It's difficult to suss out exactly what Posner's position is, but he very clearly, and rather crudely, opposes Hart. He rejects out of hand Hart's premise of criminal law as a positive instructive force for teaching people to act as society expects.
{6}As to Hart's first corollary, the rejection of strict liability, Posner's having none of it. He strongly embraces a "steer clear" credo. If it's strictly liable people will steer very wide of anything which might cross that line. Posner also rejects the balance to which Hart attaches to the second corollary. He sees the punishment as far more important than any stigma attached to a conviction. "[T]he function of punishment is to deter crime by subjecting the criminal to a degree of disability that exceeds the utility he would obtain from the crime."
{7}He eventually gets to his rejection of Hart's premise. The government cannot press morality upon the public. Rather, the public condemnation of certain acts forces the government to illegalize them and attach a punishment appropriate to the public's level of condemnation of these acts. He ties all this to vengeance as a utilitarian tool for the implementation of retributive justice (although now supplanted by professional career incentives with the development of professional law enforcement and prosecutors). Posner never defines criminal law himself, but seems to adopt James Fitzjames Stephens': "[B]efore an act can be treated as a crime . . . it ought to be of such nature that it is worth while to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it."
{8}As a parting shot, Posner inflates Hart's position to one of Kantian/Protestant moral responsibility and then shoots down this straw man by pointing to the fact that different people performing exactly the same act can be punished differently depending upon the consequences of that act.
Lammers
To begin with, esthetically Hart's article is much better written than Posner's. Part of this is because Hart's article is less cramped at 6 times the length of Posner's and is an argument in favor of a position, rather than a reaction. Part of it is that Posner's response is just poorly written. Still, the important considerations are actually the arguments being made so let's consider them.
Hart's basic premise of criminal law as an incentive and stigmatizing tool to train people to be honest is true in the great majority of cases {1}. Honest people knowing an act to be illegal do not partake of that act. Posner's argument against Hart's social organization principle is that {7} the government can't do this because the violative acts are things which the populace already condemns and forces the government to adopt because of its condemnation. This is a distinction without a difference. Social training is not something which ends at a particular moment. It is a continuing process. There will always be outliers and youths who have not yet learned proper societal behavior. When the populace presses upon its government criminal laws it is setting up a continuing set of rules by which these people will know the consequences of their choices and thus fall under Hart's premise.
However, while Hart's second corollary is solid in concept, I think Posner is correct in rejecting the method by which Hart envisioned its implementation for offenders. Hart is entirely too optimistic about the continuing ability of the mere stigmatization of an immoral choice being able to affect the choice of a moral actor. Stigmatization works to keep honest people honest and perhaps with those convicted the first time (maybe the second). Thereafter, it is almost certainly a failed endeavor. As I've previously stated, "Once a person has demonstrated that he cannot, or will not, conform to basic societal norms removal from society as a protective measure becomes the only way to deal with the offender." Posner is also correct in his assertion that in serious cases the way in which society shows the act to be morally reprehensible is through the imposition of stiff punishment and that a failure to do so damages the system.
Nevertheless, Posner's consequetialist argument is a red herring {8}. The fact that different punishments can flow from the same act depending on the consequence does not remove the possibility of conviction as a moral consequence to an immoral actor. In actuality, the moral actor faces the most severe punishment every time he makes an immoral decision which might result in more than one punishment depending on consequences.
Turning to strict liability in criminal law, Hart has by far the better argument; it does not make sense to punish people for things they did not intend or intend to recklessly risk. However, Posner's position is at least prevalent here in Virginia.
Posner's critique rings hollow. UPS, FedEx, Postal drivers (et cetera) should not be held strictly liable for the fact that drugs are, most assuredly on a daily basis, being shipped illegally in their trucks. There are, of course, other situations in which a driver might act in a manner indicating willful ignorance and that's why we have juries and jury instructions
On the other hand, Hart's theory has no problems with willful blindness. It's not even an exception to the rule. Willful blindness is a violation of minimal societal rules in that it is a purposeful omission of action in the face of likely criminal activity in order to allow one's own ignorant participation in that same criminal activity.
Posner's strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. "The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense." (p. 97)
This pretty much brands Posner as someone who has not had actual trial experience. He's never seen that trial wherein the immature 18 year old defendant (looking all of 14) has "raped" the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y'know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I've seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the "justice" of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning. Ignore the facts; ignore justice as it applies to a particular situation; chug along with statistics and plow under any sap stupid enough to get in the way of that broad prophylactic line meant to protect innocents from evil doers by destroying anyone (moral or not) who gets near the line.
In the Name of Justice
Now you see why I couldn't do a review of the entire book. Just imagine this same sort of post repeated for each and every author who replied to Hart's article. I commend this book to you all and hope you spend some time thinking about the theory behind the things that we do.
Hart
{2}Hart is an idealist. His overarching ideal is that the purpose of criminal law is to instruct people as to what society views as the absolutes of proper behavior (this far and no further). His definition of criminal law is "community condemnation of antisocial conduct" combined with "the imposition of unpleasant physical consequences." He walks a line between deterrence and rehabilitation, rejecting both as the ultimate goal of criminal law. Deterrence is rejected as negative while the purpose of the law is positive; a person is to make his own moral choices and the knowledge of the consequences of his acts shall train him to make the proper choices. Rehabilitation is rejected because it views the offender as someone who is defective and removes the responsibility of his choices from him; one cannot make moral choices without being responsible for the act and consequences flowing from that action. Succinctly, criminal law lays down the minimal societal parameters within which moral actors can, of their own free will, choose to act and, if they fail in their choice, have knowledge of the consequences they face.
{3}Hart posits two corollaries to his theory. The first is that strict liability has no place in the criminal law. This boils down to lack of knowledge and thus lack of intent. A moral actor cannot make a free will choice if he does not know there is a choice to be made. Hence, the entire purpose of the criminal law is made void.
{4}The second corollary is that punishment should be no more severe than necessary. It should both express the community's condemnation and be tailored to returning the offender to society as soon as possible as "responsible and functioning member of the community."
Posner
{5}Posner is of a different stripe. It's difficult to suss out exactly what Posner's position is, but he very clearly, and rather crudely, opposes Hart. He rejects out of hand Hart's premise of criminal law as a positive instructive force for teaching people to act as society expects.
{6}As to Hart's first corollary, the rejection of strict liability, Posner's having none of it. He strongly embraces a "steer clear" credo. If it's strictly liable people will steer very wide of anything which might cross that line. Posner also rejects the balance to which Hart attaches to the second corollary. He sees the punishment as far more important than any stigma attached to a conviction. "[T]he function of punishment is to deter crime by subjecting the criminal to a degree of disability that exceeds the utility he would obtain from the crime."
{7}He eventually gets to his rejection of Hart's premise. The government cannot press morality upon the public. Rather, the public condemnation of certain acts forces the government to illegalize them and attach a punishment appropriate to the public's level of condemnation of these acts. He ties all this to vengeance as a utilitarian tool for the implementation of retributive justice (although now supplanted by professional career incentives with the development of professional law enforcement and prosecutors). Posner never defines criminal law himself, but seems to adopt James Fitzjames Stephens': "[B]efore an act can be treated as a crime . . . it ought to be of such nature that it is worth while to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it."
{8}As a parting shot, Posner inflates Hart's position to one of Kantian/Protestant moral responsibility and then shoots down this straw man by pointing to the fact that different people performing exactly the same act can be punished differently depending upon the consequences of that act.
Lammers
To begin with, esthetically Hart's article is much better written than Posner's. Part of this is because Hart's article is less cramped at 6 times the length of Posner's and is an argument in favor of a position, rather than a reaction. Part of it is that Posner's response is just poorly written. Still, the important considerations are actually the arguments being made so let's consider them.
Hart's basic premise of criminal law as an incentive and stigmatizing tool to train people to be honest is true in the great majority of cases {1}. Honest people knowing an act to be illegal do not partake of that act. Posner's argument against Hart's social organization principle is that {7} the government can't do this because the violative acts are things which the populace already condemns and forces the government to adopt because of its condemnation. This is a distinction without a difference. Social training is not something which ends at a particular moment. It is a continuing process. There will always be outliers and youths who have not yet learned proper societal behavior. When the populace presses upon its government criminal laws it is setting up a continuing set of rules by which these people will know the consequences of their choices and thus fall under Hart's premise.
However, while Hart's second corollary is solid in concept, I think Posner is correct in rejecting the method by which Hart envisioned its implementation for offenders. Hart is entirely too optimistic about the continuing ability of the mere stigmatization of an immoral choice being able to affect the choice of a moral actor. Stigmatization works to keep honest people honest and perhaps with those convicted the first time (maybe the second). Thereafter, it is almost certainly a failed endeavor. As I've previously stated, "Once a person has demonstrated that he cannot, or will not, conform to basic societal norms removal from society as a protective measure becomes the only way to deal with the offender." Posner is also correct in his assertion that in serious cases the way in which society shows the act to be morally reprehensible is through the imposition of stiff punishment and that a failure to do so damages the system.
Nevertheless, Posner's consequetialist argument is a red herring {8}. The fact that different punishments can flow from the same act depending on the consequence does not remove the possibility of conviction as a moral consequence to an immoral actor. In actuality, the moral actor faces the most severe punishment every time he makes an immoral decision which might result in more than one punishment depending on consequences.
Turning to strict liability in criminal law, Hart has by far the better argument; it does not make sense to punish people for things they did not intend or intend to recklessly risk. However, Posner's position is at least prevalent here in Virginia.
[C]ourts construe statutes and regulations that make no mention of intent as dispensing with it and hold that the guilty act alone makes out the crime.Posner roots his anti-intent argument in the "intent's hard to prove" vein and the it'll make people steer clear justification (the Virginia Supreme Court's reasoning is basically "'cuz we said so"). It is, of course, sometimes hard to prove intent. In fact, trials are often held because a pesky defendant has decided to assert that his intent was other than to commit the act of which he is charged.
Posner's critique rings hollow. UPS, FedEx, Postal drivers (et cetera) should not be held strictly liable for the fact that drugs are, most assuredly on a daily basis, being shipped illegally in their trucks. There are, of course, other situations in which a driver might act in a manner indicating willful ignorance and that's why we have juries and jury instructions
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:This is why we put 12 people in the box - to use their combined experiences and apply their common sense to real world situations in order to decide whether the driver has engaged in deliberate ignorance.
1. Actually suspected that (he/she) might be involved in criminal activity;
AND
2. Deliberately attempted to avoid taking steps to confirm or deny those suspicions;
AND
3. Did so in order to provide (himself/herself) with a defense in the event of prosecution.
On the other hand, Hart's theory has no problems with willful blindness. It's not even an exception to the rule. Willful blindness is a violation of minimal societal rules in that it is a purposeful omission of action in the face of likely criminal activity in order to allow one's own ignorant participation in that same criminal activity.
Posner's strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. "The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense." (p. 97)
This pretty much brands Posner as someone who has not had actual trial experience. He's never seen that trial wherein the immature 18 year old defendant (looking all of 14) has "raped" the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y'know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I've seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the "justice" of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning. Ignore the facts; ignore justice as it applies to a particular situation; chug along with statistics and plow under any sap stupid enough to get in the way of that broad prophylactic line meant to protect innocents from evil doers by destroying anyone (moral or not) who gets near the line.
In the Name of Justice
Now you see why I couldn't do a review of the entire book. Just imagine this same sort of post repeated for each and every author who replied to Hart's article. I commend this book to you all and hope you spend some time thinking about the theory behind the things that we do.
23 March 2009
Judicial Reviews Are Dead
So, I'm sitting, eating lunch with a group of the sharpest local legal minds and someone mentions that the judicial review program is dead. The Chief Justice has so announced it. I look over at the gentleman and asked, "But wasn't there a statute requiring the program?" "Yeah, but the General Assembly didn't fund it after the problems this year and the Chief Justice now says it's dead."
Hmmm . . . Now, I wasn't the greatest fan of the program. I didn't have much of a problem with the judges getting reviewed, but I was concerned about the problems which could come from the system. Still, when Dave Albo, chairman of the House of Delegates Courts of Justice committee, left a comment I couldn't come up with a better alternative. All the solutions I can think of would rely on checks and balances and require a change in Virginia's constitution.
Still, I was pretty sure a program couldn't just be ended because the Supreme Court's budget was cut, so I looked up the statute.
Who knows, maybe next time they'll rewrite the statute so that the Supreme Court is entirely out of the loop.
Hmmm . . . Now, I wasn't the greatest fan of the program. I didn't have much of a problem with the judges getting reviewed, but I was concerned about the problems which could come from the system. Still, when Dave Albo, chairman of the House of Delegates Courts of Justice committee, left a comment I couldn't come up with a better alternative. All the solutions I can think of would rely on checks and balances and require a change in Virginia's constitution.
Still, I was pretty sure a program couldn't just be ended because the Supreme Court's budget was cut, so I looked up the statute.
§ 17.1-100. Judicial performance evaluation program.So, the program became law in '02 and was not funded until '07 (?). Funds were appropriated; the first judge was evaluated. What authorizes shutting the program down? Not sure, unless you read that last sentence as a continuing dual requirement. I know it seems a stretch, but I suspect the Chief Justice might win an argument about how a court should construe a statute.
The Supreme Court, by rule, shall establish and maintain a judicial performance evaluation program that will provide a self-improvement mechanism for judges and a source of information for the reelection process. By September 1 of each year, the Supreme Court, or its designee, shall transmit a report of the evaluation in the final year of the term of each justice and judge whose term expires during the next session of the General Assembly to the Chairmen of the House and Senate Committees for Courts of Justice. The reporting requirement of this section shall become effective when funds are appropriated for this program and the first justice or judge is evaluated.
Who knows, maybe next time they'll rewrite the statute so that the Supreme Court is entirely out of the loop.
22 March 2009
Chief Justice Leroy Rountree Hassell, Sr.
The Man, The Myth, The Legend
Controversy, controversy everywhere. I think I've only blawged about one intervention of the Chief Appellate judge in the operation of the trial courts.
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