Virginia Court of Appeals Invalidates 221 Years of Common Law

In its neverending quest to take the power of judges to reduce a conviction to a lesser offense or dismiss it (when the trial judge deems that circumstances are appropriate), the Virginia Court of Appeals has this week invalidated every single alteration to the common law of Virginia that appellate courts have done, in the entire history of recorded decisions (since 1790). Judges are now entirely limited to (1) what the Virginia constitution specifies they can do, (2) what the English common law, as frozen in time in 1607 and writ in stone in the Tome of the Almighty and All-Encompassing Blackstone, allowed, and (3) what statutes allow.

In one fell swoop, the Virginia Court of Appeals has changed Virginia from a Common Law State to Civil Code State. It's a tripartite civil code with one corner in the Virginia constitution, one corner in Blackstone, and one in the Virginia Code. Be advised, trial judges, that anything outside of that is not allowed per Taylor v. Commonwealth.

This, of course, is ridiculous. The Appellate Court's assertion that the common law in its entirety came to a screeching halt in 1607, is just plain unsupportable. Anyone with even a modicum of legal history under their belt knows the common law was long seen as a developing thing. If the Virginia Court of Appeals decision is taken seriously, every post 1607 court developed rule dealing with evidence is out the window (remember Virginia's evidentiary rules are in large majority common law). All those hearsay rules and exceptions better be found somewhere in Blackstone, because they aren't all in the statutes and they definitely aren't in the constitution. And I'm sure there a litany of other evidentiary practices and legal doctrines which have developed since 1607 which are not written into a statute.

UNDERSTAND, for goodness sake UNDERSTAND, that the common law and constitutional interpretation are different things. Yes, I agree that constitutions freeze in place when they are written. Interpret them per the language and history of that time. A constitution is meant to set outer limits and in order to understand them you must interpret that document the way it was originally meant to be interpreted. ON THE OTHER HAND, it shows an appalling lack of understanding to close off developed and developing common law because it did not exist in 1607. The common law is meant to adapt and then be snipped back by the legislature if it goes too far.

The Virginia General Assembly has declined to adopt a Model Penal Code; it has declined to adopt comprehensive Evidentiary Rules; it has NEVER spoken as a whole on the subject of a judge's ability to show mercy through reduction or dismissal of charges except in that it has specified how these things can be done in regards to certain offenses. In fact, the last is a tacit recognition that this practice is ongoing and a shaping of it rather than a rejection of it. The General Assembly is acting in a manner which encourages the common law.

By stepping into the gap which has been left by the lack of legislation addressing this, the Virginia Court of Appeals has set itself up a legislature. This is not appropriate and the opinion should be overruled and no further action taken by the courts until such time as the General Assembly speaks on this subject. Judicial fiat should not replace the legislative process' ability to deal with developed common law procedures.  The Virginia Supreme Court has twice rejected the Court of Appeals' overreaching in this area; I'm sure it will at least address this issue. So now we wait.

In the meantime, we get to challenge everything a judge can't justify with a direct citation to Blackstone, a statute, or the constitution.  Commence au festival!

Law Students, Law Students, and Not a Job in Sight

Number of neophyte lawyers who passed the Virginia Bar exam:

1,375 

Number of legal job openings:

956

You do the math.

At least Virginia isn't in as bad shape as New York.

CrimLaw News Around the World & Around the Corner

1) A woman in Kenya is arrested for having an abortion.

2) In possibly the most ineffective issuance of arrest warrants ever, the UN tribunal sitting to determine who killed the Lebanese Prime Minister - and nobody thinks that Hezbullah will ever let them be brought to trial.

3) The former President of Taiwan is indicted for embezzling 7+ million while in office.

4) The trial of the two Egyptian police officers who killed a kid and started the rebellion has been put off and might end up with more serious charges.

5) I don't know anything about Japanese criminal procedure, but apparently they appoint jurors rather than having a jury selection process like the U.S. Also, the comments on this murder charge are interesting and seem to indicate that rape & murder in Japan carries about a 2 year punishment.

6) This guy got 2 years for torturing a dog to death during a burglary. The prosecutor asked for 5 years. He deserves every second of the time.

7) If someone steals your purse hit his car with your cane so the police can track him down later.

8) Don't plug your cell phone into someone else's socket in Maine.

9) It's time for new judges in Virginia. Congratulations to each and every one of you. I'm sure you'll all be magnanimous, brilliant jurists, smart enough to agree with my analyses and realize that the argument the other guy is making is just so bogus.

More on JDB

A couple weeks back I was bemoaning the fact that the Federal Supreme Court has left us without a standard for objectively determining whether a minor is in custody for Miranda purposes. While I was offering possible answers, Scott over at Simple Justice put his finger on the problem: it's based on "common sense." There's not a much more mushy standard than that. Personally, I got a few comments and emails which boiled down to "What's the big deal?" So I thought I'd spend some time spinning out the possibilities which now exist because of JDB.

It seems to me that we start with the standard reasonable person class; to begin with every person is assumed to be in this class. This is what we have from Whren and its progeny. Prior to JDB this class included all individuals. What the court has done in JDB is created at least one exception by class: minors. We perceive that minors have a different mindset than their elders and therefore, we are going to set a different standard for them. What standard will probably be played out over the next several years since the Court punted on that, but we know there is a lower standard of accountabilty.

The interesting part of this is how it effects the Whren standard. It could mean that Whren no longer applies to minors as a class and that the subjective state of mind of a minor is to be taken into account in every single case. That is the nightmare scenario which leads to arguments in every case in which the defense attorney tries to convince the trial court that his 17 year old client is as immature as a 4 year old while the prosecution tries to show that the kid is as more mature than the judge. Meanwhile, Judge Smith will find that everyone old enough to walk is mature enough to understand her right to walk away from questioning while Judge Jones will find everyone 1 tick of the clock short of 18 years of age is so immature that parents must always be present during questioning and Miranda must always be read. This, of course, would be a huge departure from the Whren and I suspect what will eventually wind up with is at least two classes of minors in which those under a certain age (say 16) which are suspected of a crime cannot be questioned without parents present and those 16 or 17 are treated as adults.

As some commenters on the last JDB post realize, another reason I find JDB interesting is that the logic behind it doesn't hold only for minors. Logically, if one class can be excepted from the reasonable person standard others can as well. All it takes to carve another exception from the Whren class is that society perceive that a class of individuals has a different mindset than the rest of humanity. That's not a high hurdle. An obvious class would be individuals with mental deficits. Another which might be carved out are women suffering from battered woman syndrome who are questioned by male officers. Then we can get to ethnic, racial, and religious perceptions. We could also overturn some longstanding law. Those in the class of intoxicated individuals have long been held to account based upon statements they made to officers while they were intoxicated. Now we have an obvious class of individuals who would have a difficult time being cognizant of their ability to walkaway from questioning. Of course, each of these potential classes carries its own constellation of issues in determining "objectively" that a person belongs to a particular class and whether "common sense" perceptions are realities or merely prejudicial perceptions imposed upon the class. In any event, logic dictates that the existence of one class exception means that others also exist and the reality is that we all belong to some class so this newly recognized set of "exceptions" could easily swallow the whole.

However, I have great confidence in the ability of courts to not follow logical reasoning. Trial courts will almost undoubtedly limit the interpretation of JDB to minors exclusively. Appellate courts will follow suit. That doesn't mean that sharp defense attorneys who are pushing the boundaries aren't going to use this opinion as the basis for all sorts of creative arguments.

Tweeting the Traffic Stop

There's been a little bit of commotion over the last day about Darnell Dockett, a football player from Arizona, tweeting a traffic stop in which the officers tried to get him to let them search his car. You can look at the entire conversation here, but I did want to put up the part which made me chuckle

Police said "do you mind if we look around in your Vehicle?" I said I sure DO! He said "I'm gonna call back up" I said u wanna use my phone?

Opposite Sides of the Illegal Pill Trade

A local jurisdiction did a drug round up and a local internet site listed all the arrestees. These comments following the list illustrate the "fix the problem but don't punish my family member" outcry we often hear and the "they are destroying the community, get rid of them" we hear even more often.

Family:

My dad is one of these guys. I'm 15 and I don't understand why they do these things. I do know that I have a GREAT father. He just needs some help. I love him and miss very much. I know that jail isn't the right place for him. He needs to be in rehab or something. He has 3 daughters and would do ANYTHING for them that he possibly could. If anyone has anything about these people, walk a mile in their shoes before you judge them.

Okay, So I'm just like a daughter to one of these guys listed above, I'm 16, and his daughter is just like my sister. I'll NEVER understand why he's on drugs, He has 3 girls, and me to raise, He's a GREAT guy, and I know this isn't the place for him, He doesn't deserve to be put in jail. They are addicts, and most of the reason they are addicted is because all the stupid doctors around here, give them the pills to get addicted to.

Punish Them

You got to understand they are DISABLED so that gives them a excuse to sell pills because they can't do anything else but they can work so hard stealing copper, fishing, hunting, going to all the parties, getting drunk, and four wheeling, but now remember I cant work. So let me go to the pharmacy and get my pills for a dollar because I'm DISABLED while everyone else that works hard everyday and all the coal miners that have worked 30 plus years underground and are still going everyday have to pay full price such as 50 and 60 dollars but me i get them for the wonderful price of one dollar so I can turn around an sell them and then when the Law Enforcement works so hard to catch me I'm going to get slapped on the hand and told not to do it anymore and I'll promise I'm straight and I won't ever do anything like that again but as soon as I get out the doctor is going to write me another prescription and whoooo hoooo time to make more money and people can get on the internet and say he just made a mistake.

What a joke. I hope they all rot in jail. Jail is were they should stay. wake up people your county is going to H3LL !!!!!

Do you know how fast you were going?

J.D.B. v. N.C.: The Supreme Court on Questioning a Juvenile Or How to NOT Set a Standard

Yesterday the Federal Supreme Court decided in J.D.B. v. North Carolina that in deciding whether someone is in custody (and thus must be told his Miranda rights) the courts must consider the age of the individual. Up to this point, there was a rather strong argument that under appellate precedent the objective factors which were to be considered in determining whether a suspect was in custody were all external to the suspect. Was he in a locked room? Was the officer sitting between the suspect and the door? Was the suspect in cuffs? &cetera. Now, the court has made it clear that those characteristics of a suspect which are known, or should be known, to an officer must be taken into consideration as objectives factors. For the moment this has only been applied to age, and I shall only discuss the age issue today, but it leaves open all sorts of interesting possibilities for future arguments based on race, gender, religion, etc.

J.D.B. was 13 years old. While in school, he was pulled out of class and put in a room with an officer and a vice principal. Without being read Miranda or being put in contact with his parents, he was questioned and confessed to a crime.

The entire argument of the case on appeal was whether his age had to be considered in determining whether he was in custody. And that's the only question the court answered. It's answer? Yes. There's more verbiage to it, but no actual standard appears anywhere. How is age to be considered? No answer is given. The Federal Supreme Court dumps it all back on the North Carolina Supreme Court to decide if J.D.B. was in custody when questioned.

Most of the opinion is spent rebutting governmental claims that age is a proxy for state of an individual's subjective mindset. The problem here is that it is not entirely convincing. What we are substituting for a the subjective mindset of an individual is the perceived subjective mindset of a class. All individuals are presumed both to know that they have the right to walk away from questioning and to have the capability of doing so. However, we perceive that minors, as a class, may not understand they have the right to leave or have the ability to walk away from authority figures.

So, since the Supreme Court has declined to actually give us a standard, how is minority going to be considered in determining whether someone is in custody? Well, the simple answer would just be to lay down a blanket rule that if officers question anyone under 18 without parental presence the questioning is custodial. Yet, that seems just as contrary to common sense as not taking age into consideration at all. After all, we all know that 17 and 18 year olds aren't different (other than an arbitrarily drawn line). If an 18 year and 1 day old understands the difference between custody and freedom to leave, a 17 year and 364 day old should understand as well.

Another possible test would be to go to the age rules which have developed over many years in the U.S. Basically, these age rules declare that (1) a child under 7 years of age CANNOT commit a crime, (2) a child 7 to 14 is rebuttably presumed not to be able to commit a crime, and (3) a child 15 to 17 can commit a crime. The first and third rule can be easily ported into the new precedent. Under 7 a child is always in custody when questioned by an officer; 15 and older the minor is treated as an adult. The problem here is the second rule. If we rebuttably presume that a child suspect age 7 to 14 is in custody when questioned we leave open circumstances in which the child suspect is not in custody because he understands as well as a normal person in the same circumstances. If we start arguing over the maturity of a particular 14 year old (he runs the local gang, handles $10k a week in drug business, and has a 17 year old girlfriend) then we start having objective / subjective problems. We have decided he is objectively in a class presumed to have a mindset not capable of understanding and handling the questioning situation. Are the circumstances which indicate that he is mature objective ones considerable by the officer or are they merely indications of a individually subjective mindset which cannot be considered?

Perhaps the standard is that Miranda must be read to each and every minor, whether the minor is objectively in custody or not. But, that doesn't really solve the age problem. At what age do we deem minors able to even understand Miranda warnings? At what age do we deem them capable of acting even if they understand?

This has, just in the portion that will deal with minors, potential to ripple out for at least 3 to 5 years. If you throw in all sorts of other classes - abused women, lawyers, the handicapped, etc. - this has the potential to ripple out into decades of constitutional decisions.

Alamo Drafthouse

Never been to Austin in my life, but I've heard numerous critics rave about the Alamo Drafthouse and how serious they take the viewing experience. They also apparently have a sense of humor. This is the trailer they show before the movie to let people know that using phones is absolutely not allowed (very, VERY NSFW).

What People Think of Us

I was bouncing around a few internet bulletin boards reading the local gossip (a guilty pleasure) and I ran across these wonderful words describing how people perceive attorneys:

Post One -
"Lawyers are no good. They are why the Nation is in the shape that it is in. I have watched how they treat people in court. They defend the worthless and it doesnt matter who the victim is they will go down fighting for people who have raped sold drugs and have killed. Theres no honor in how they treat the victims of crimes. The good olboy system, all the Attorney's get in the back room and make deals. It is actually pretty crappy. I have heard some say if that individual stole my stuff they need to be hung. I guess its ok they steal the average Joe's stuff. Dump A-- should not have left it out. Lawyers are worthless."

Post Two -
"Don't think they [attorneys] are on drugs but they are responible for alot of crimes going unreported because people know how they will be treated in the courts by the Attorney's and Judges who are Attorney's. A convicted felons word will be take over a law abiding citizen or police officer. I got a speeding ticket and had to be in court and the Judge talked to this guy like he was a dog because he was upset that the case was being put off again and he was trying to explain that he had a family to support and needed to work and that he had already missed three days work to testify in a case where his house had been broken into. This is how the system treats the people for being honest and law abiding. Its all ok the Judge got paid over $100,000.00 a year and the Attorney will get paid by the tax payer merry christmas."

--------
Good to feel so loved . . .

Scalia on Congress' Ability to Write Precise Criminal Statutes

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

----------

From: Sykes v. US

Strauss-Khan, Phones, & Computers

A question came up in my comments when I checked them this morning:

I am very intrigued about a question related to the NY Strauss-Khan case. Police confiscated the man's phones and computer when he was arrested. His lawyer says messages left on these gadgets may contain sensitive information related to his defense, so he asks that prosecutors be barred from knowing what the messages say. What are the rules? Can the police go through his messages and then decide who has access? Who decides if prosecutors get access to the messages? What if the messages contain an indication of his guilt?

First, I'm sure his defense attorney is right. There is almost undoubtedly info on those phones and computers which the prosecution would love to have and the defense wants to keep from them.

Second, the thing which most likely determines the answer to this is how the police came into possession. If the phones came into possession as part of the search subsequent to arrest or were taken as the defendant checked into jail, then the police probably would have to get a search warrant to actually access the information in them. However, I suspect this is not how the police came into possession of the phones and computers (computers don't often fit in pockets). Most likely the police got the computers and phones as part of a search warrant. It would be a very shoddily written warrant which would call for the seizure of computers and phones, but not call for the search of the information in them. So, a police search of the data would be allowed. In fact, I can't think of any reason that computers would be seized except to search them.

However, there might be a restriction upon the officers' ability to look at the computer content. If the defendant was using the phone or computer to send and receive messages with his attorney there could be privileged information located on them. In such a case, the defendant could ask that the information not be usable by the prosecution; he could also ask the court to stop agents from the prosecution from looking at the information. The remedy here would be to have the judge look over everything in camera (by himself, in his office). As a practical matter, this may not be feasible. The judge is not a forensic computer expert. He may have to try and set a firewall between the prosecutors and their expert so that everything they find on the computer and want to hand over to the prosecution has to be given first to the judge and then, only after he approved it, forwarded to the prosecution.

CrimLaw News Wednesday

1) If you mandate that the laws get lenient, police may arrest people before the law changes.

2) Japan has discovered a shocking thing: there's more crime in cities than in rural areas and criminals take advantage of situations.

3) Y'know, having spent 6 months there once, I can say that I don't think Sharm El-Sheik would be a bad place to wait for trial.

4) Peeping up skirts via a see-through stairway in an Ohio courthouse.

5) The Global Commission on Drug Policy says to legalize it all. Because that's worked so well with oxycontin, hydrocodone, subutex, xanax . . .

CrimLaw in the News

1) The local paper in Powhatan, Virginia has discovered that when people are sentenced by juries that they get larger sentences than when they are sentenced by the judge.

2) Does the Virginia Department of Corrections have to pay for someone's gender change surgery if the person continues to try to mutilate himself into a female?

3) Kentucky is limiting the ability of its officers to arrest those who break the law.

4) Beating yourself up to get out of a ticket? Not worth the effort.

Why Change That Law (Part Duex)

A while back I was reading through the new statutory changes (in place as of July 01) and found something which seemed like tweeking the statute just for tweeking's sake and when I posted it ya'll were kind enough to provide an explanation of why the statute was changed. So, I've got another one for you.

18.2-308.1(B) as currently constituted:

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony; however, if the person possesses any firearm within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

This is being changed into 18.2-308.1(B) & (C):

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony.

C. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be guilty of a Class 6 felony and sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

Okay. Got it figured out. Halfway through writing the post I realized that the same bill which does this also changes the list of violent felonies under 17.1-805 (for sentencing guidelines) so that the only violent felony under 18.2-308.1 is the newly created subsection C. So, if an 18 year old kid is dumb enough to bring his hunting rifle to school to show it to his buddies he may end up with a felony, but it won't be a mandatory minimum 5 year, violent felony.

Lawyers, Morality, & Law

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That's more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things. Imagine a United States wherein anyone who has not been employed, in a taxable job, for 6 months out of a year is put on probation and if they are not employed for 6 months out of the next year they are executed. It would have several salutary effects. The would be far fewer people on the dole. There would be a strong incentive for people to be productive. Additionally, since people would have a strong incentive to not work under the table, a large portion of the underground economy would surface and be taxed. And all it would take is to kill those among the 13.7 currently unemployed in the U.S. who can't find and keep a job.

I understand the impetus behind the lawyers' thinking. We see the flaws in the legal system day after day after day. Day in and day out, it is difficult seeing morality through imperfect statutes, enforced by less than perfect officers, manipulated by lawyers, and interpreted by flawed judges. It is so much easier to put one's head down and say they are just rules, nothing more and nothing less. The very fact that we see the flaws in the trees leads us to deny that there is a forest.

And yet the forest exists.

In Memory

Have You Gotten Your Justice Shed Yet?

For Americans who are sick and tired of annoying technicalities like "due process" and "proof beyond a reasonable doubt" a video explaining how to set up your very own Justice Shed:

Negotiations at Their Best

Prosecutor: "He shot him in the gut. I'll offer 3 years for maiming."

Defense Attorney: "Maiming!?! Nobody around here is going to convict him for shooting Johnny Smith."

Prosecutor: "Okay, what do you think he should be convicted of?"

Defense. Attorney: "Destruction of property. That was a pretty decent shirt Johnny was wearing. Nobody should have their property torn and stained like that.'

Disclaimers and the Bar

A Richmond lawyer, Horace Hunter, is in the midst of a conflict with the Bar over whether he has to put a disclaimer on his website informing readers that the results he announces are not guarantees of future results. Horace is publishing occasional summaries of cases in which he was involved. I picked a sample of 7 of these and read them. They are in a basic press release format. A strong paragraph at the beginning identifies the victorious case and client and also makes it very clear that Horace is the attorney in the case. Then there is a short factual/philosophical/legal/tactical discussion. None of the summaries I read had anything confidential information in them. All of the summaries are published in a blog format under the moniker "This Week in Richmond Criminal Defense."

So, as far as I can tell, the only real complaint the Bar can have is the lack of a disclaimer. As you all know, I am a big believer in disclaimers and have had one on my blawg at least since 2006. In its current incarnation it states:

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

Of course, my situation is different from Horace's situation. My blawg was meant to show things from my point of view. This has ranged from war stories to comments on news stories to goofy things that have caught my eye to analysis of laws and cases. It was never intended to get clients to walk into my office. Horace's posts are clearly meant as a type of press release and as a means to flesh out his website.

I understand that the ethics folks are interested in making sure that the public realizes that there is no guarantee that a result with one particular client, in front of one particular judge, in one particular jurisdiction will mean that other clients will get the same result. If I'd have been Horace, I would have probably put in a disclaimer at the bottom or side - confidant that most members of the public aren't going to read the boilerplate anyway. However, he has decided to make a principled stand based upon the 1st Amendment right to freedom of speech. Bravo. It is always good to see a person make a stand for something he believes in. It will be interesting to see how that eventually plays out.

An interesting question is whether a disclaimer is actually needed to inform the public about the nature of the information they are getting. The summaries are clearly on a law firm's website and about that law firm. They are written in the stilted, awkward format that press releases always have and are obviously self promoting of the lawyers in the firm. Granted, not all criminal defendants are the sharpest crayons in the box, but anyone computer savvy enough to get to the website and navigate to the case summaries should have enough brainpower to realize this is an advertisement. Does an obvious advertisement need something to point out it is one?

Personally, I view disclaimers more as a way to protect the attorney rather than the client. Would I put up a disclaimer in Horace's place? Sure, I would. Not because I thought the clients are too dumb to understand that I'm not going to advertise the cases with less than optimal results for the client or that they will be misled to believe I win every case. Not because the Bar has some arbitrary rule. No, I'd do it to protect my own hide. Would I actually expect any clients who came to my site to read the disclaimer? No. However, clients who lose complain to the Bar, file malpractice suits, or try to get a writ of habeas corpus. That disclaimer goes a long way toward neutralizing spurious claims that the things I published on the web misled the client into thinking she was going to win that robbery case with her DNA on the scene, video of her committing the offense, and a witness list against her that had 4 nuns in it.

New Virginia Criminal Laws

Strange changes in the Gambling Law

Virginia has put together all its legal changes and, as per usual, there's always one or two which don't make a lot of sense to me. The definition of illegal gambling has been changed as follows:

a. For the purposes of this subdivision and notwithstanding any provision in this section to the contrary, the making, placing, or receipt of any bet or wager of money or other thing of value shall include the purchase of a product, Internet access, or other thing, which purchase credits the purchaser with free points or other measurable units that may be (i) risked by the purchaser for an opportunity to win additional points or other measurable units that are redeemable by the purchaser for money at the location where the product was purchased or (ii) redeemed by the purchaser for money, and but for the free points or other measurable units, with regard to clauses (i) and (ii), the purchase of the product, Internet access, or other thing (a) would be of insufficient value in and of itself to justify the purchase or (b) is merely incidental to the chance to win money.

Obviously, this is done in an attempt to make internet gambling illegal. First, it makes the common sense correction of deleting the part which makes gambling only illegal if done at a physical location. The weird part is where it talks about purchasing iternet access of insufficient value to justify its purchase or incidental to the chance to win. I understand that they are trying to shut down internet gambling, but no one is overpaying for internet access as part of a coverup for gambling. Still, I think that the inclusion of "or other things" covers what they were trying to get to because the transfer of funds to an internet site for "credits" (or whatever a site calls them), which are basically worthless except for their value in gambling, seems to fall within that language.

I wish they were somewhat more precise in their language. "Other things" does leave open an argument that electronic credits are not things, but conceptualizations of potentialities; I'm sure those of you out there who are defense attorneys will find a simpler way to say that to a judge. They are not things because they have no physical embodiments outside of the ever-shifting electrons in any electronic brain system (that's a computer for those of you who have never read old science fiction).

On the other hand, "thing" is a broad catch-all word in English. It clearly does not have to denote a physical item. We've all seen the television show with the detective saying, "Here's the thing, I don't believe you." In that example, "thing" is referring to a belief or state of mind, not a physical item. As well, we'd all understand if Steve Jobs were on a stage talking about the iPhone 6 and he said something like ". . . and our support website for the phone is a thing unto itself." Therefore, a website, and by inference other things on the web, is a thing.

[addendum] After putting some thought into it, I think what the General Assembly meant by "internet access" is probably access to a particular website. The purpose is probably to keep people from paying $5,000 for a week's access to "Texas Hold'em Heaven." As such, the language used fails because "internet access" does not cannote, in normal usage, the access of a single site, but the access of the internet in its entirety. However, I think that "other things" also covers site access.

How the U.K. Views Americans

Sometimes, the best way to understand how another group of people perceives you is to watch portrayals in popular media. It's there where people let slip what they actually think.

As a fan of science fiction, I've been watching the new season of Doctor Who. Consequently, I've seen a couple scenes which might give a clue as to what the folks living on the islands on the other side of the Atlantic think about us.

[For those of you who don't know, the Doctor is an alien who moves through time and space fighting evil aliens and solving problems. He usually travels with two or three humans.]

Scene One:

The Doctor has snuck into the Oval Office and is seated in the president's seat. About 10 Secret Service agents are standing with their pistols pointed at him. The Doctor is sitting there smugly saying something to the effect of, "Really? I just snuck into the most secure room in the world and you think you are going to shoot me?" At this point, one of the Doctor's companions (who has been watching) runs into the room shouting "They're Americans!!" The Doctor jumps out of the seat and says nervously, "Don't shoot! Definitely, don't shoot!"

Scene Two:

An American FBI agent is facing down an alien and asks it if it is armed. The alien answers back in an ominous tone, "We have manipulated you since fire and wheel. We need no weapons."

At that, the FBI agent draws his pistol and guns the alien down.

----------

Somehow, I'm getting the impression that we might be seen as a little gun happy.

Saturday Fun

Just gonna have some fun today and post up a few things that caught my eye.

I Want One

You know, the law covers firearms, pnuematic guns, knives, throwing stars, street sweepers, sawed off shotguns, and machine guns, but I don't think there is anything in the law forbidding me from walking down the street with a Gatling Style Slingshot Crossbow:

If you look at this guy's vids, he also has a semi-gatling style hand version. However, it doesn't have a triggering mechanism like the crossbow version.

Ritzification of Music

Caucasian Conversions (all female leads with geeky guy back ups):

The Most Popular (I like the part where she refuses to actually sing the lyrics because they are so bad):

The Best (watch for a minute - it gets really good):

Also Very Good (Very NSFW):

I may be in love with the girl in the second video. Wow. The only problem is that I'd be too easy to manipulate. Every time she wanted me to do something I didn't all she'd have to do is start singing. I'd get mesmerized and follow right along . . .

NASCAR to Start Thursday Night Races

NASCAR has announced that it is adding a new race series in the 2012 schedule. The new races will be scheduled on Thursday nights and feature a vehicle of mandated design, much as the Nationwide and Sprint cars have been required to adhere to design requirement. Robert Tankersly, VP of Developmental Promotion announced the new race on the 28th of April:

We though about adding motocross, but the necessity of trucking in tons of dirt and removing it before the Camping World series made that impractical. We've not been able to convince any television outlets to cover the iRacing series. As well, the open wheel racers are not willing to give their series over to our control and we have some concern that if we showed people that style of racing it might detract from followership of the Nationwide and Sprint series. So, we went out and designed and created an exciting new form of racing.

At this point, revealed a prototype of the vehicle planned for use in the new Piggly Wiggly Cup Series:

It was announced that restrictor plates on these vehicles will limit them to a maximum of 75hp.

Reaction among current racers was uniformly positive. Rookie Martin Payton, whom NASCAR introduced with the prototype as a man expected to rise through the Piggly Wiggly Cup series, compared the vehicle with the ones at his store in Asheville.

We had three of these in our store for handicap use. After hours, when we got tired of stocking, we'd race those things around the store three or four times. This will be pretty much the same except the track won't have wax on it and nobody'll get fired if a boss walks in. I can't wait to get my Quaker Oats, Jello, Hot Pockets cart out there and win our team a Piggly Wiggly Cup.

While none of the major teams have announced that they will participate so far, there are persistent rumors that Kyle Busch already has sponsors lined up an will make an attempt to win all four races in one week.

Why Change That Law?

I'm going through all the new laws the General Assembly of Virginia has passed and trying to figure out which ones change criminal or traffic laws so I can brief the local deputies and officers. Sometimes I wonder exactly why a change was made. For instance, as 46.2-859 currently stands, it is illegal to pass a (un)loading school bus:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion.

Apparently, that didn't work because the General Assembly is changing the statute (effective 01 July) to:

A person driving a motor vehicle shall stop, such vehicle when approaching, from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and shall remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion; any person violating the foregoing is guilty of reckless driving.

The only reason I can conceive that this change is being made is that somewhere out there a defense attorney is arguing that the current statute is oblique and does not specifically require a driver to stop and therefore punishes drivers for doing an activity which they are not forbidden to do. It's a creative argument, but I can't see any judge I've practiced in front of buying it.

So, the question is, do I tell the LEO's about this or just blow it off as the General Assembly tweaking a statue without changing its meaning in any significant way?

Gotta admit, I'm leaning toward the second.

Pay to Prosecute?

Sometimes, when you are reading through the statutes you run across some interesting things. Today, I was reading through the pre-trial sections of the Virginia Code to check on some indictment procedures and found this:

§ 19.2-229. When complaining witness required to give security for costs.

For good cause the court may require a complaining witness to give security for the costs and if he fails to do so dismiss the prosecution at his costs.

It's an interesting statute in that it does not require the Commonwealth to pay costs; thus, it's not a redundant section requiring payment for attorneys or experts in an indigent case. This is aimed directly at "a complaining witness."

Who, then, is this aimed at? One possibility is that it was meant to apply to citizens who come in time after time after time after time to the magistrate swearing out warrants for every time their neighbor looks at them cross-eyed. Also, it might be intended to keep merchants from using bad check charges to collect their money without paying the fees that it would cost to do civil collection. Of course, the problem with these possibilities is that vast majority of those charges are handled in General District Court and Virginia Code Section 19.2 only applies to Circuit Courts.

A second question which comes to mind is whether, should a defense attorney move that the judge impose this section on a complaining witness in a case, would the prosecution have standing to oppose the motion? After all, the prosecutor represents the government; she's not the personal attorney of the complaining witness.

How to Tell the Jury Trial is Going to be Difficult

You know that it's going to be a long day when the judge introduces the parties to the jury like this:

"Ladies and gentlemen, the attorney sitting at the table closest to you, with her client, is Martha Hampton. I always have to ask what her name actually is before I introduce her to a jury because for the last 25 years that she has been practicing law here in Pitcairn county everyone has always called her 'Honor.' I think her daddy gave her that nickname, just like he called her brother Martin, who owns the big car dealership in the town of Lesterton, 'Tiger.' She's been doing this for a while and she'll be defending Mr. Jones today."

"And the Commonwealth is represented by Ken Lammers."

"Now, I'm going to give some preliminary instructions . . ."