30 August 2013

Ambush in Bartlette: Chapter 19

Yusif woke from a nap to the sound of someone knocking on the front door of his apartment. He looked up at his computer and the screen saver told him that it was 3:42. He usually slept at least another hour before he got up, ate, showered, and went out for Saturday night activities.

He walked over to the door, shaking his head and running a hand through his hair. As he did there was another knock and he hollered out “Yeah. Yeah. I'm coming.” Then he opened the door and found Madeline Mullins smiling evilly up at him.

Well, I hope that I'm not supposed to take that statement at face value.”

Yusif froze and started to sputter something as she laughed and walked past him into the apartment. Into his uncleaned, unprepared for company, apartment. Which had not been vacuumed for at least a month. Which had the remnants of last night's Dairy Queen supper and today's Sir Pizza lunch on the coffee table. He walked past her and grabbed them off the table and tossed them in on the counter area in the kitchen part of the room. Because he thought as he looked at the unwashed dishes this drew his attention to that makes things so much better. He turned back around to find Maddy with the same impish smile. And, it was a devastating smile.

Madeline “Maddy” Mullins was about five foot two, with curly black hair that went halfway down her back and a body that tended toward fat. She obviously knew this and worked out for hours every day to keep it under control. Whenever Yusif went to the local hole-in-the-wall gym he saw Maddy there riding the stationary bike or jogging on the treadmill. All that working out didn't make her skinny – nothing would ever make her skinny - but it kept her right in that hourglass zone which drove men nuts. At least it drove the guys at the gym nuts. As the truck driver whom Yusif usually worked out with put it. “Once she settles down with a guy and pumps out a couple youngins, she's gonna swell up like a tick on a hound. But up to that point, that boy's gonna have himself one Hell of a good time.”

Today she was dressed in a sky blue dress that fit just tight enough, and had just enough decolletage, to accentuate everything she had without quite crossing the line into sluttiness. The girl definitely knew how to maximize her assets. And she was standing in the middle of his apartment. And Yusif had probably never been quite as intimidated by a woman as he was at that moment. And she knew it.

Um, Yusif, aren't you going to offer a girl a drink? Or at least a seat?” She looked around the living room and realized that the only place to sit was the beat up old futon with his blanket strewn across it. “Although, I doubt that thing has enough space for the two of us to sit on it. I may have to sit on your lap instead.”

Yusif could actually feel himself blushing. Then he could feel himself starting to get angry. And that finally made him able to speak.

Why are you here? What are you doing here?”

She gave him a stern look that was colored with a bit of humor. “It's called flirting, Yusif. You should try it some time. It's fun.”

When he didn't react she continued. “Anyway, I'm here for two reasons. First, we're going out next Friday night. I'm tired of all this dancing around at the gym. You look at me; I look at you; you look at me; nobody does anything. That's just plain stupid. Next Friday. Dinner. Someplace decent. And I mean a place that serves wine, not a kicker bar with only Bud and Jack behind the counter.”

Yusif started to snap something, but his brain engaged just in time. A date with Maddy Mullins was not a bad thing. He started to regroup and think it over in his head. When he was quiet too long she gave him a look, nodded her head, and went on.

Okay, that's settled. Don't you want to know what the second reason is?”

He nodded slowly, a cautious look in his eyes, and she went on.

We're going to run you for commonwealth attorney this year.”

Wait! What?!? We?” The fog in Yusif's brain burnt away as his super ego and survival instinct combined to stomp his libido. “What are you talking about Maddy?”

We, the Democratic Party of Bartlette, are going to run you for commonwealth attorney.” 

27 August 2013

Introducing The Virginia Theft Project


The Virginia Theft Project

Virginia has never created a “theft” statute. Instead, it has a hodge-podge of common law offenses and statutory creations under larceny, fraud, embezzlement, et cetera. I thought I’d start trying to lay out as much of Virginia’s theft related crimes as I could in a series of posts which I am going to label the Virginia Theft Project.

I hope to make one entry a week until I run out of things to write about. I’ll start with the more obvious common law crime of larceny and move from there.

VTP: Defining Larceny



Larceny is the most basic of theft crimes. Of course, a crime this important can’t possibly be statutorily defined. Instead, in Virginia we rely on definitions which have been developed by the courts over the centuries. At its core larceny is criminal trespass upon the chattels of another with the intent not to restore those property rights trod upon. See Vaughan v. Lytton, 126 Va. 671 (1920)(a discussion of the definitions offered by various legal treatises for larceny and specifically 2 Bishop on Criminal Law describing theft as trespass). In Virginia cases you will sometimes see this described as “trespassory taking.” This is instructive in that points to larceny as the original “theft” crime whence all the larcenies, frauds, embezzlements, and statutory theft crime sprang (probably so far back in history that we would have to examine British common law to find its roots).

In more modern times the definition of larceny has been somewhat more locked down. It is defined as “the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.” Carter v. Commonwealth, 280 Va. 100, 104-105 (2010).

Most of that is pretty simple to understand, but “intrinsic value” does need some clarification. Under long-standing Virginia case law there is no requirement that the prosecution actually prove a value to prove larceny occurred. The value can be less than that of the smallest coin and no distinct proof of a specific value is necessary. 
Wolverton v. Commonwealth, 75 Va. 909, 913 (Va. 1882).

With this, we have the basic framework of larceny. I’ll build from here in the next couple posts wherein I discuss felony larcenies, misdemeanor larcenies, exceptions to larceny, presumptions of larceny, continuing larceny, attempts, conspiracies, and deemed versus punished as.

26 August 2013

Ambush in Bartlette: Chapter 18

Bo woke up to the sound of the alarm on his phone. It was playing some random song from Pandora that sounded like it belonged in a Eighties era disco. As he walked across the room to turn off the screaming techno-beat, he wondered yet again why his wife refused to use her own account and kept polluting his Pandora selections with this garbage.

Once the phone was quieted, he looked at the time. It was four o’clock in the afternoon, the time he usually woke up since the Sheriff banished him to the mid-night to eight in the morning shift. He could smell something cooking in the kitchen. Mary always tried to cook an especially good meal for him on Saturday afternoon. He was trying to sort out the odors when the house phone rang. He left it for Mary and started picking out clothes to change into after he showered.

After six rings, Mary’s voice echoed through the house. “Pick up the phone, lazybones. I hear you back there and my hands are covered with grease and flour from whatever this Southern-fried whatsimicallit is that I’m making because you like your arteries clogged.”

Bo smiled. Most of the week she made him eat healthy food (at least at home). But once a week he got real food and he would go to some lengths to preserve his Saturday feast - even answer the phone. He grabbed the handset next to the bed.

It was Clyde Mullins. The Mullins were a significant family in Bartlette because they owned the two Hardees in the county and seven banks there and elsewhere. However, Clyde was best known for being the head of the local Democrats and after exchanging a few pleasantries, he got directly to the reason for his call.

“Bo, I heard about what happened yesterday. You got royally screwed.”

“The Sheriff has every right to run for office again.” Bo replied in a neutral tone.

“No. No, he really doesn’t.” Clyde said. “We all know about his health problems. He’s not fit to hold the office anymore. And everyone knew you were the next in line. Now, because you had the gall to survive an attack by his deputies, he’s pissed at you. He’s not only stuck you with the worst duty he could find, he’s also messing with your future.”

“Clyde, what do . . .”

“I want?” Clyde continued, rolling right over Bo. “I want you to announce that you are running for sheriff on Wednesday just like you planned. Only, I want you to announce as a Democratic candidate.”

Bo sat down on the bed. He’d never even thought about running for office as a Democrat. He’d grown up in Bartlette and could not remember the last time a Democrat held a significant elected position. He must have remained silent for a while because Clyde started asking if he was still there. After he grunted something, Clyde went on.

“Look, I know I’ve kind of sprung this on you, but I’m going to need an answer. You’re the best choice, but at least one of the Mahans is a Democrat and I’ve got to call him if you won’t step up. And, I think you should know that we’ve already got a really good candidate for Commonwealth Attorney. Yusif has agreed to run.”

19 August 2013

Ambush in Bartlette: Chapter 17

Yusif looked at the files and disks sitting on his desk and the two chairs in his office. After Brad indicted Brownie, Dave, and Jeff on capital murder charges, the feds finally agreed to allow him to discuss the evidence with others. The first thing Brad did was dump all the documents and recordings on Yusif with orders to organize them and put the evidence in order for trial. The stuff Yusif had around his desk was a tithe of the reams of paper which the feds and state police wheeled into his office two weeks back. The rest were in boxes which were stacked two deep up the wall to Yusif's right.

Yusif had read through everything and pulled out the stuff around his desk. He sat looking down at the most important reports and tapes from the boxes and wondered what he was going to tell Brad. Brad had asked for a summary today and Yusif knew what his boss wanted to hear. Brad wanted to hear that the cases were all in good order and would be easily proven in court. Yusif could not tell him that. Sure, a prosecutor would have to stumble in blind drunk to lose the cases against Brownie and Dave. However, the case against Jeff was worse than thin. It did not exist. Everything was supposition and statements by people who had a lot of incentive to put the blame on someone else. The recordings which were supposed to back the statements were useless.

The all important recordings were supposed to be the linchpin of any prosecution against Jeff. Only, they weren't. They were all snippets cut out of larger conversations and they were all ambiguous. Sure, Jeff complained about Bo being in the way of his aspiration to become Sheriff, but he never told anyone to do anything about it. Likewise, there were snippets of conversation about drug trade in Yared, but none of them showed more than the knowledge that Yared was the center of corruption and illegal activity in Bartlette County. Without more of the conversations to give context, these scraps of dialogue lent themselves to whatever meaning the listener cared to give them. There was no way they proved murder beyond a reasonable doubt.

Yusif looked at the clock. It was half past two and Brad should be back in his office by now. He sighed and got up to walk down stairs. Putting this off would not make it any more pleasant. Brad was going to be in a foul mood this afternoon. The third Friday of the month was the Republican luncheon and those meetings were getting more and more acrimonious as Sheriff Minton and Brad faced off over the pending trial. It was becoming more and more obvious that the Sheriff's supporters were trying to push another attorney to challenge Brad for the Republican candidacy for commonwealth attorney.

Yusif found himself standing in the door of Brad's office. He had to wait for a couple minutes because Brad was on the phone griping to someone about the luncheon. Apparently, the Sheriff had announced that he would be running for Sheriff again "because there is no other suitable candidate." This kneecapped Bo Ross, who everyone knew planned to announce his candidacy next week. Brad saw Yusif and waved him to a chair in front of his desk. Then, he used Yusif as an excuse to end the conversation.

As he hung up the phone he glared across the table at Yusif. "Can you believe that shit? That old bastard screwed Bo over. He's already banished Bo to the midnight shift 'cuz he can't stand to look at him. And now Minton's screwing him out of the Sheriff's job."

"Can you do anything about it?" Yusif asked.

"Not a damn thing." Brad replied. "Everyone I can influence would already vote against Minton. If I openly endorse Bo all it will do is drive more people away from him.”

Brad waved his hand. “Enough of the political crap. How are things with the ton of papers the FBI dumped on us?”

Yusif rubbed his hands together, pausing for a beat. “It's not good boss.”

“What do you mean, 'It's not good?' The case the FBI put together is pretty much bulletproof. They walked me through the evidence and I didn't see anything wrong. What is it?”

“Well, it's solid for Dave and Brownie, but there's no case at all for Jeff.”

“Look, Yusif, I know you like Jeff. Hell, I like Jeff. But he killed six people in that alley. He may have sent other people to do it, but he killed just as sure as if he pulled the trigger himself.”

Brad was leaning forward in his chair pointing his finger at Yusif. A big man, Brad was used to being able to pressure other men with his size and he subconsciously reached for that advantage whenever he was in an argument. However, Yusif was offensive lineman large – a full two inches taller and sixty pounds heavier than his boss. He had also seen Brad in action for years and realized when Brad was trying to intimidate someone into agreeing with him. And Yusif did not intimidate easy. He did not lean into his boss, but he did not retreat an inch either.

“No, you look, Brad. There's. No. Case. Against. Jeff. All there is are the statements by three crooked-to-the-gills ex-police who are trying to get out of things by blaming other people. Absolutely nothing supports their story. I've gone over all the FBI stuff. There's nothing there. Nothing.”

“Bullshit. I've heard those tapes. Jeff knew what was going on. He pushed it. He's the God-damned ring leader and it's obvious. You just don't want to believe because Jeff fooled us all. Hell, he still has you fooled! Do your fucking job. We are going to convict Sanger and he is going to get the fucking needle. No discussion. No debate. He killed them. He dies.”

“But the people who actually shot everybody get a pass? Because the only way you can possibly make that case is to put them on the stand and they won't testify unless you take the death penalty away. They killed without remorse, Brad. And now they are lying without remorse. And you're falling for it. You are going to kill an innocent man based on their lies. You can't do that!”

“I can. I will. He is guilty as fucking sin and you and the Sheriff are the only assholes who think any of those assholes are innocent. Do your job and get the damn case ready.”

Yusif looked Brad in the eyes and steadied himself. “I will not. You knew from the day you hired me that I go to a Church that doesn't believe in the death penalty Still, you assigned me work on the cases in which you are trying to get it. Okay. I can hold my nose and do the work - as long as it's just. This isn't just. It's stupid. You're planning on letting two killers get away with it so they can help you try to kill the guy who you've got absolutely no evidence did anything. There's no evidence that Jeff did anything and I won't do it.”

“Get out of my office.” Brad's voice was flat, but his face was bright red and his eyes boiled with anger. “In fact, get out of the building. I don't want to see you at all until Monday. Now get out!”

01 August 2013

Ambush in Bartlette: Chapter 16


Brad walked right past Paula and Jeanna and slammed the door to his office behind him. For most of the day he had been in general district court arguing against bail for Jordan, Minor, and Sanger.  Judge Fleming would have shut down that stupidity in minutes and probably lectured the defense attorneys about filing frivolous motions. However, Judge Fleming was a potential witness and therefore he had refused to have anything to do with the case. Instead, Judge Heaberlin, a retired judge out of Abingdon, came over to hear the motion and it was a disaster.

Heaberlin let the three defendants call twenty-three family members and friends each swearing that the killers were angels who would never hurt a fly and valued members of the community with deep ties that guaranteed they would never flee to avoid trial.

When the defendants called Sheriff Riker, Brad was caught off guard. He knew the Sheriff was in the courthouse. In fact, eight members of the Sheriff's Department were in the courtroom, in uniform, sitting on the row directly behind the defendant's table. Still, it had been a shock when the Sheriff was called to testify for the killers. And once he started to testify things got nasty.

The Sheriff testified that the men were still valued members of his department with jobs waiting for them. Also, he had evidence that family members of the victims in the Pahl case were the ones who ambushed his deputies. He had warrants for Howard Mullins and Kyle Young with him, issued by the magistrate that very morning.

The first time Brad heard any of this was while the Sheriff testified. His cross examination was exploratory and brutal.  By the time it was over, the entirety of the Sheriff's evidence was exposed as being that each person he had just charged was related to one of the raped girls, each had a conviction for a violent crime in his past, and neither could account for his whereabouts at the time of the ambush. It was clear that the only reason the Sheriff had gotten his warrants was because the magistrate who issued them was one of the Sheriff's poker buddies and a fellow member of the local Elks lodge. It was also clear that the Sheriff was going to do everything in his power to disrupt the prosecution of his deputies.

Judge Heaberlin sat behind the bench soaking it all in. Once all the evidence had been presented he sat writing something on the pad in front of him for over five minutes, leaving everyone else in the courtroom sitting in silence. Then he issued his ruling.

“In the matter of Commonwealth versus Sanger: no bond or bail. In the matter of Commonwealth versus Jordan: no bond or bail. In the matter of Commonwealth versus Minor: five million dollars, bond to be secured by property or cash. Court is adjourned.”

With that, the district court judge stood and walked out of the courtroom without any explanation of his decisions.

The frustrating thing about all of it was that Brad knew the defense attorneys would appeal the lower court's opinion to the circuit court and he would have to do the same hearing all over again in a few days. In the meantime, he would have to get the district court judge to rescind those warrants before two men who didn't do this crime got arrested for it. Neither Howard Mullins nor Kyle Young was a stranger to the local jail or the courthouse. In fact, the reason they could not account for their whereabouts at the time of the ambush probably had something to do with stealing or dealing. Brad wouldn't lose any sleep if they were hassled a little, but he didn't need this complication of his case.

After thinking about it a couple minutes, he decided to call Darla Begley, the attorney who usually represented Kyle Young. After a couple rings, a chipper female voice answered the phone. 

"Law office."

“Hey, Darla, it's Brad. You representing Kyle Young on anything right now?”

“Hey Brad. I'm sure I am. He's got to have a driving while suspended or drunk in public going. Why? You looking to hook him up with something else or need him to talk with you about what some of his buddies are doing?”

“He's got a warrant outstanding right now.”

Darla's voice became a mix of wariness and resignation. “What's he done now? Supposedly, that is.”

“The Sheriff took out a warrant for murder this morning, but pocketed it until today's bond hearing. Tomorrow, I am going to go into court and get those warrants rescinded or dismissed or whatever I have to do to get rid of the damn things. Until that time the warrants will be out there. Deputies will probably try to arrest your client tonight. You might want to tell Young that he should spend the night somewhere else than his trailer.”

“What? You want me to call my client and tell him to avoid arrest?” Darla's voice rose with anger. “I am not going to get an obstruction of justice charge. I won't do it for my clients and I am not doing it for you. You leave me out of this private little war you and the Sheriff are ginning up.”

“Darla you have a duty under the Bar's ethics rules to . . .”

“Don't you tell me what my ethical duties are, mister high and mighty Commonwealth Attorney. I was doing this ten years before you even passed the Bar. Don't you ever call me and try to push me around like a pawn in your political games. Ever!”

With that, the line went dead. Well, crap. Brad thought. That could have gone better. Then, after a couple of seconds looking at the phone he picked it up and called out to Paula.

“Paula, is anybody representing Howard Mullins right now?”

24 July 2013

Larceny of the Lost (In 3D)

I'm over in Duskendale County waiting to do a special prosecution. As is the norm in Duskendale, all the attorneys are sitting in a room outside the general district court discussing the important issue of the day: can a wallet which has been dropped by its owner be stolen?

The defense attorneys in the room were arguing that something not in the possession couldn't possibly be stolen because nothing was taken. Larceny is the taking of another's property with the intent to permanently deprive the other of that property. If the other person isn't in possession it can't be taken from him.

The Duskendale County prosecutor countered that there was a difference between mislaid property and abandoned property. Abandoned property cannot be stolen. Mislaid property could. After all, we've all been to SuperMegaMart and not been able to find our car in the massive parking lot afterwards. If someone took your car in row 215 while you were looking for the car in row 178 it would still be a larceny.

Then they turned and looked at me. Dang it. You teach a few CLE's and people start to think you know more than you actually do. Slowly, the gears in my brain started to clang into motion. Heck, I've never had to research that question before. I was looking forward to watching them argue this out in court so I could see what cases they were going to cite and how the appellate courts have handled this issue. My sense of the matter was that the prosecutor had the better of the argument, but I did find the defense attorney's argument interesting.

Anyway, the best I was immediately able to tell them was that I knew that under the 4th Amendment the fact that an item was lost did not preclude an individual from having a continuing privacy interest in the item. In other words, if a police officer finds a purse or wallet or backpack, the officer is only allowed to look inside in a manner meant to find identification; he is not allowed to do a general search of the item.

Of course, that wasn't satisfying for anyone - "That's the Constitution, not the common law." - so I did what every lawyer does. I jumped on the internet. It took a few minutes and there didn't seem to be any modern cases on point, but eventually I found Tanner v. Commonwealth, 14 Gratt. 635 (1857).

Tanner is about the taking of lost property and lays out the rules as follows:

A.  Lost property remains in the constructive possession of its owner.

B. Larceny of lost property occurs when

1.  The taker intends to exercise dominion over the lost property when she took it, and

2.  The taker knows the owner or has means of ascertaining the owner.

C.  However, if there is no way of ascertaining ownership there can be no larceny of the lost property.
Of course, the language in Tanner isn't in the exact terms of art we now use, but the rule is pretty clear when you read it.

So, if anyone leaves their purse or wallet sitting on a shelf at SuperMegaMart and another person comes along and snatches it, that is almost always a larceny because of identification materials carried within. On the other hand, if someone comes across a fifty dollar bill on the sidewalk or a finds a diamond ring in a gutter it won't be a larceny - even if the person intends to keep it when she picks it up - because there is no way to identify the actual owner.

16 July 2013

New Discovery Rule in Virgina?
Flaws and Fixes

For as long as I have been practicing law in Virginia the big fight in criminal discovery has been over police reports. The defense Bar has lost this fight over and over again arguing everything from the Constitution to FOIA. Now they are trying to get the Virginia Supreme Court to change the Rule.

Virginia's discovery is limited. The prosecution doesn't have to tell the defendant the names of its witnesses or give the defense any statements made by anyone other than the defendant himself. Of course, the police report is the Holy Grail for this information since most reports have the name, address, phone number, and statement of each witness. It's also a wonderful tool for use in impeaching the officer. "Officer Smith, on page 32 of your report you state the purse was dark blue and today you've told the jury it was black. Which was it? Why should the jury believe anything else you've said if you aren't being truthful about this?"

All that said, in the vast majority of cases it would not matter if the defendant was given the police report. In most minor felonies - larceny, writing bad checks, embezzlement, malicious wounding, possession of drugs, etc. - an "open file" policy makes life easier all around and may lead to cases settling more quickly.  However, there are a number of cases where this is not the case and herein lies the failure in the proposed rule.
Proposed 3A:11(b)(4) - For good cause shown and pursuant to a protective order entered by a court, the Commonwealth may redact the identity and address or other similar identifying information of a witness when necessary to protect the safety of that witness or his or her family.
There are only two ways in which this can work. First, the Commonwealth Attorney can get the judge to sign a standing order allowing the prosecutor, at his discretion, to decide when to withhold this information. Second, the prosecutor would be allowed to have ex parte hearings with the judge. If the prosecutor has to provide this information in open court, with the defendant present, what's the point since the defendant will probably hear enough to identify the witness anyway?  The problem is, I don't think that Proposed 3A:11(b)(4) allows either of these and if I don't I'm sure those of you in the defense bar surely do not.

Here's a better example of what this subsection of the Rule should read like:
 3A:11(b)(4) - (i) The Commonwealth Attorney, or a designated deputy, may redact information from any report or statement when such information would endanger a person or harm an ongoing investigation. A letter notifying the Court that redaction has occurred shall be entered into the Court's file and copied to the defendant.  

(ii) A defendant may challenge the redaction. Upon challenge the defendant shall argue his case to the Court. Thereafter, the Court shall have an ex parte hearing with the Commonwealth in which the Commonwealth must justify its redaction.

(iii)  This shall not relieve the Commonwealth of the duty to make any constitutionally required disclosures.
Something like this would allow open discovery in most cases and provide a workable solution for those cases in which open discovery would be deleterious. Of course, it will therefore leave everyone unhappy. Too many people - on both sides of the aisle - view what we do as a war wherein we must destroy the enemy and craft rules and laws to our advantage and their disadvantage rather than a contest to determine truth as best we can. The Rule as currently written favors prosecutors. The Rule as proposed favors defendants. The Rule as I have laid out above is more of a middle way, fairer to both sides.

08 July 2013

Ambush in Bartlette: Chapter 15

Bo Ross sat in his patrol vehicle, in the parking lot of the Ezee Stop in Yared. It was three a.m. and the store was closed. In fact, everything in the entire county was closed at this time of night. Still, someone had to be out on patrol and the midnight to eight a.m. shift fell to him and two other deputies. Prior to “the incident” Bo had been the chief of patrol, but afterward the Sheriff decided there was too much publicity and too many distractions for Bo to continue in that job and reassigned him as shift leader on the midnight shift.

“The incident” was the term the Sheriff used to describe the day Bo was almost killed. In all the movies the person shot suffered traumatic memory loss, but Bo remembered the incident about as clearly as anybody could. The Sheriff had saddled Bo with three of the least reliable deputies in the department for court security. In fact, the reason that he did not escort the Pahl brothers back to their holding cell personally was that Judge Isom called Bo back in chambers to voice his displeasure. By the time Bo left the judge's chambers Boyd and Carr had already taken everyone out of the courthouse.

Bo followed as quickly as he could and found everyone lounging in the alley. He walked off the porch and started over to the prisoners, while he told Carr to clear all the civilians out of the alley. He had just started walking over to get the Pahls moving toward the door to the Sheriff's Department when there were a series of loud noises and the Pahl brothers were both thrown backward into the building behind them. More shots followed and the civilians scattered. The two other deputies took cover behind the propane tank that provided fuel to heat the courthouse.

Bo turned and ran back to the courthouse door. It was the only way out of the alley that could be reached without letting the guy with the firearm have a clear shot. He had just gotten his key in the door when a sledgehammer hit him in the back - several times. He was slammed forward into the door and fell off the side of the porch behind bins in which trash and recyclable materials were kept. At first he was just stunned. Through a haze, he heard more gunfire and then there was a huge explosion which he felt more than he heard.

This time he was knocked out. When he came back around all of the plastic bins were on top of him and he was covered in trash. He dug out from under them and found himself in Hell. A huge how was blown into the side of the Sheriff's Office and there were flames everywhere. Everywhere he looked in the alley he saw a man with multiple bullet wounds or serious burns. He grabbed the first person he came to, one of the Pahls' attorneys, and started hauling him back to the safety of the courthouse. When they got up on the porch Bo's keys were missing. He looked around but they were nowhere to be seen, so he just started going back and grabbing other men and laying them on the porch in front of the door.

When he had all the casualties around the door, he started banging on the it and yelling for Sergeant Qualls. He didn't know how long it took, but eventually Judge Fleming opened the door and Bo started moving all the casualties inside. A couple of Mount View police officers arrived, but the fire had gotten too intense for them to come down the alley to help. After he got the wounded inside, he started perform first aid as best he could although he doubted any of it had actually helped except for the tourniquet he put on Attorney Lasley's arm.

When the judge touched Bo's arm he realized that the gunfire and explosion had made him almost deaf. Judge Fleming was yelling something Bo could barely hear as though he were at the end of a long tunnel filled with a ringing silence. After a couple seconds, Bo shook his head, told the judge to call for help, and told him to get Qualls to check to see if anyone else needed help. Then he went back to trying to render some sort of first aid.

The Paramedics took a long time to arrive and they pulled Bo off, gave him a quick once over, and sent him off to side, out of the way. He sort of collapsed once he sat down in a corner with nothing to do and the next thing he really remembered was being helped onto a gurney so the medics could transport him to the hospital.

Now the FBI and State Police were saying that the whole thing was a plot to kill him by five of his fellow deputies. Worse, Brad Dollerby, the local Commonwealth Attorney, had decided that he was going to prosecute everyone involved in the incident himself. Even worse, the Sheriff was circling the wagons and seemed to be taking steps to marginalize the people he did not trust in the department. And, clearly Bo now fell into the untrustworthy category.

It did not sit well with Bo that someone had shot him and he was getting blamed. It did not sit well at all.

02 July 2013

Ambush in Bartlette : Chapter 14

Brad sat in the third pew on the right hand side of Mount View United Methodist.  The service had been going on for well over ninety minutes by now and showed no signs of letting up.  Ever since the new pastor arrived the services had averaged two and a half hours.  Brad did not care for the young man.  The previous pastor, Brother Carl, had been unpretentious, friendly, and (most importantly) had kept his services somewhere between an hour and hour fifteen minutes.  The new pastor, Elder Todd Brooks O.P., was young, passionate, charismatic, and driven to bring everyone to Jesus.  His services lasted at least two hours and his sermons were usually the greatest part of that.  In fact, the young Elder was somewhere around the sixty minute mark of his current sermon and showed no sign of slowing down.  He was going on about something having to do with prayer and the Apostle James.  Brad found himself unable to concentrate on the fine points of the sermon.

He glanced at his watch. It was ten thirty-six. In less than half an hour mass would start at Saint Berlinda with Maggie sitting dutifully on the third row of wooden chairs. Before Elder Todd Brooks O.P. came to town, Brad used to go to services at Mount View United Methodist at nine and then meet Maggie at Saint Berlinda for mass. However, faced with a choice, Brad was a Methodist and he would go to his church rather than hers. Besides, Mount View United was the biggest church in the county and Brad figured his membership was worth at least two hundred fifty votes every election. In a county where only about five thousand people voted during the last presidential election, two hundred and fifty votes were precious.

Things with Maggie were almost back to normal. She sniped at him a little this morning because he would not be at Father Tolton's final mass at Saint Berlinda. Brad smiled a little. His wife was starting to return to herself around him and he would soon be rid of this troublesome priest.

The most surprising thing had been Abby's reaction to all of it. Of course, living in the same house as they did she heard the whole fight between her daughter and Brad and she thought the way they were acting was silly. "My Charley and me used to have fights bigger than that at least once a week and he wasn't a fan of priests either. Sometimes I think the only reason he ever went to mass was so he could stand outside and smoke with his buddies in the Knights afterwards. Anyway, the way you two were before wasn't natural. You have to blow up once in a while to relieve some of the pressure. Otherwise you'll just start to quietly hate each other. Now, get over yourselves." Abby gave that speech after a couple days of watching them walk on eggshells around each other and she had not said a word about it since. However, she still rolled her eyes when she saw them being careful around each other.

Meanwhile, as his domestic life came back together, the county fell apart around them. An army of federal agents and state troopers hit Bartlette County on Tuesday morning. It seemed like half the town of Yared was arrested, including everyone on the town council and the three officers at the top of the six person police force. Then they arrested two deputies from the Sheriff's Department, Sergeant Ian Minor and Captain Jeff Sargent. When armed men broke in his front door, Jeff scrambled for the rifle in his closet and they tazed him in the back just as he was pulling it out, causing him to fire into his ceiling.

Brad only learned about this when he was awakened by a call from the Sheriff. Sheriff Minton was beside himself. After Brad got the Sheriff settled down he got a quick shower and headed into the office. Then he started making calls. Every call to FBI Special Agent Mazzota went straight to voicemail. When Brad called the local State Police post, the phone was answered by Kyle Dotson, the First Sergeant. Kyle was polite, but he was clearly under orders not to talk to anyone in local law enforcement. After a couple minutes Kyle made an excuse and hung up. Brad was left sitting in his office at six-thirty with nothing to do.

Before seven-thirty, the Sheriff called four times. Each time he was more worked up, but had no new information. At eight, Brad started to walk out of the courthouse to go down the street to get breakfast, but when he opened the door and saw the street flooded with police cars he went back inside, called the Sheriff, and found out that every deputy had been called in to the office.

By nine both Yusif and Paula were in the office. Both had heard about the arrests on the news and had questions, but Brad knew no more than they did. He tried calling the Attorney General's office in Richmond. He got fobbed off on some flunky who told him that they would get back to him "as soon as practicable." Then, he made another fruitless attempt to call Special Agent Mazzota. It was at this point he decided to treat the situation as a political problem rather than a law enforcement one.

He started at the top and worked his way down. Brad headed Senator Salyer's last campaign in far Southwest Virginia and his first call went to the Senator's office in D.C. Surprisingly, he got through to her on his first call. She was watching the news herself and wanted him to tell her what was going on. When Brad told her he was being frozen out she seemed to take it as a personal affront. Her voice was tinged with determination and a bit of anger as she promised him that someone in the FBI would be in contact before the day was over. After finishing that call, Brad began calling every delegate or senator he knew in Virginia's General Assembly. Once he mentioned the fact that Senator Salyer was helping with the FBI, quite a few of them promised to help with the Attorney General and the State Police.

At around eleven there was an announcement made to the press by the U.S. Attorney for the Western District of Virginia, but no one had contacted Brad. Finally, at around three in the afternoon, a call came in from Captain Fraley at the State Police Division headquarters in Wytheville. The Captain had direct orders from Superintendent Boles to brief Brad on the operation and if he could come to Wytheville the next morning the State Police would fill him on everything they knew. Shortly after that a call came from a D.C. number and a Special Agent Sanderson told him that Special Agent Mazzato would be at the Wednesday briefing to answer any questions he had for the federal government.

The Wednesday morning briefing was not a friendly affair. Nevertheless, it was eye opening. Before they began, Brad was required to sign a document stating that he would not disclose the information in the briefing to anyone in local law enforcement – including the Sheriff and his own deputy prosecutor. Then the FBI took over and briefed Brad.

There was nothing terribly surprising about the first part of the briefing. The Poplins were involved in a large scale drug ring which enjoyed their protection in Yared. Everyone in Bartlette County knew the Poplins were crooked, although their level of involvement in a multi-state drug ring was more than Brad had thought them capable of. He knew they were involved in cock fighting and gambling on high school football, but never suspected they were doing much more than providing a safe haven for small time drug dealers in town. Still, it was not that he thought large time drug dealing was beyond their desire; he had just thought it beyond their grasp.

In fact, the Sheriff's refusal to do anything to clean up Yared was one of the main frustrations of Brad's time as Commonwealth Attorney. As it turned out, the State Police and FBI were also less than impressed by the Sheriff's inactivity. For a long time they suspected he was involved. However, after planting false information with the Sheriff three times and waiting to see if there was any reaction from the drug ring, they were eventually satisfied that he was not passing information to its members. Their conclusion was that the Sheriff was either not willing to risk the political fallout of cracking down on Yared or that he was lazy – probably both.

However, they were convinced that the Sheriff's Department had a number of corrupt deputies. Of course, Brad knew which deputies had been arrested, but it was still something of a shock when they told him that Jeff Sanger was the person who decided that Bo Ross had to be killed. Apparently, he thought was that with Bo out of the way he would have the inside track to become the next sheriff. Ian Minor, Dave Jordan, and Oscar Mickleson had each pointed a finger at Jeff.

When Brad pointed out that the former deputies and Yared police officer lacked much in the way of credibility, Agent Mazzato played a number of recordings which the FBI recovered from Ian Minor's phone. The man had recorded a lot of conversations with his fellow conspirators. In many of them there were discussions about what Jeff wanted done and there were two in which Jeff told Ian he wanted Bo out of the way so that he could become sheriff. It was damning.

The first attempt to kill Bo had been at a trailer on Baylor Ridge. They waited until the other two deputies on duty were tied up elsewhere and then called in a domestic disturbance. With everyone else busy, they knew Bo would have to respond himself. The plan was to kill him and blame it on the man who lived in the trailer. However, Bo got the call while he was getting some coffee with Trooper Pillay and, bored at one in the morning, the trooper decided to back him up. When the deputies saw two cars arrive with flashing lights and realized the second was a state trooper they retreated into the woods and left.

The second attempt to kill Bo was more complicated. The Pahls were coming to trial and everyone knew the Sheriff would assign Bo to look after court security for such an important case. Technically Teddy Qualls was the bailiff, but he was over sixty years old and retired on duty. Generally, Judge Isom just let him sit in a chair and doze during court as long as the Sheriff sent over help during serious cases.

It was easy to get Carr and Boyd assigned as court security. The Sheriff had no money for overtime and everyone knew a jury trial would mean working extra hours. When Boyd and Carr volunteered it saved the Sheriff from forcing someone else to work without getting paid.

According to the FBI, there were two plans. The first called for Carr and Boyd to take the Pahl brothers from the courthouse, but not deliver them to the holding cell in the Sheriff's Department. They would stop in the alley and give the Pahl brothers a couple of cigarettes to smoke. After some time, Bo would come out of the courthouse to see what the delay was. As soon as the door closed behind Bo in the alley, Minor and Jordan were going to open fire. If they could get clear shots they would shoot the Pahl brothers. If there was no clear shot they would shoot over everyone's heads. However Bo reacted, once he turned his back on the deputies in the alley, Carr was going to pull out an old pistol he had taken during a search of the Pahl house and shoot Bo in the back. Everything was going to be blamed on an escape attempt by the Pahls.

Unknown to Carr and Boyd, the actual plan was for everyone in the alley to die. Minor and Jordan would start by shooting the Pahls. Then, as soon as they saw Bo go down they would open fire on the deputies as well. They were also going to shoot a hole in the propane tank in the alley and set off a fireball to destroy evidence and stun anyone still alive so that they could walk down the alley and finish the job.

However, once time came to put everything in action, things starting going wrong. When the deputies started to take the Pahl brothers out of the courtroom their attorneys insisted on walking with them. The deputies refused at first, but Grant Lasley started to throw a fit and Teddy Qualls told them to let the civilians walk with them. Qualls was a sergeant, and Bo was back in the Judge's office at the time, so the deputies had to let the civilians come with them. They stopped in the alley as planned with a herd of people instead of just the two prisoners. The two deputies took a position on the side of the alley next to courthouse, leaving the others clustered on the side next to the Sheriff's department.

Bo came out about fifteen minutes later. Minor and Jordan were in a car in the parking lot and as soon as Minor saw the door close behind Bo he pulled the car up and Jordan opened fire from the back seat with an AR15. He sprayed fire at the Pahls and the civilians. When Bo ran to open the door to the courthouse Carr shot him in the back four times. Three of those bullets hit the kevlar vest Bo was wearing and, although the vest held, the force of the bullets slammed Bo into the door and knocked him off the porch behind the trash cans.

While that happened, Minor got out of the car with his Stevens 200 30-06 and fired four shots at the propane tank in the alley. One round missed entirely and one hit at enough of an angle that it ricocheted into the ground. However, two of the bullets struck true and propane spewed into the alley in a white cloud. Jordan kept firing the AR15 to keep everyone pinned down and hoping to set off the propane. After a few seconds they realized gunfire was not going to set off the gas and fell back on their backup plan. Minor had a street flare ready; he lit it and threw it into the alley.

The explosion was much larger than anything they had planned for. Special Agent Mazzota spent several minutes trying to explain the forensic lab's explanation for the size of the explosion, but most of it went over Brad's head. Somehow the weight of the gas, the heat of the day, and the enclosed area all combined to create an explosion which tore into the Sheriff's Department and started secondary fires. It also scared the hell out of the shooters. They jumped back into the car and took off.

Then they began the coverup. They drove the car, which had been purchased for a couple hundred dollars cash from a man in Kentucky, out to an old strip job and set it on fire. After that Minor drove to Pikeville, Kentucky where he would claim to have spent his day off shopping and eating at Jerrys. Jordan was supposed to do the same thing in Bristol, Virginia. However, a state trooper recognized the "Don't tread on me" flag painted across the entire tailgate of Jordan's truck and chased him down to tell him about the explosion. Thus, an hour after causing the explosion Dave Jordan was on the scene investigating it.

After they realized that the people in the alley survived, the conspirators became hypervigilant - looking for anything that might signal someone knew what they had done. The appearance of an unknown attorney trying to speak privately with Yusif spooked them. That was the reason Jordan went to Roanoke and beat the attorney to within an inch of his life. And it turned out to be for nothing; the attorney had nothing to do with the murders. He had been hired by the Democratic Party of Bartlette to feel out Yusif as a possible candidate for Commonwealth Attorney in the next election.

Brad smirked to himself. If they'd just approached Yusif directly that poor guy in Roanoke wouldn't be missing a couple teeth right now.

In any event, the attack in Roanoke triggered the reaction by the feds. When Brad left the State Police office the only question in his mind was how many people he would be charging with capital murder.

28 June 2013

Let's Grade the New Washington and Lee Law Program

A while back Washington and Lee Law decided it was going to start training law students in the actual practice of law in its third year of law school.

Admittedly, I have not looked at the W&L Law 3L program indepth prior to this date. I was just happy that they are trying to actually give the students some legal skills, but after viewing the almost gleeful reaction to W&L's placement rates, I thought I might look into this for myself.

My conclusion? The third year program is flawed. Still, it has the kernel of a really great program within it. It just needs to trim a lot of dead wood classes and concentrate on real world practice.

Here's how W&L Law describes its 3L year:
W&L Law's rigorous third year expands upon the lessons and law of the first- and second-year curriculum, moving students out of the classroom and into the real world of legal practice.

The third year consists of four components that blend the practical and the intellectual into a diverse range of simulated and real practice-oriented experiences:
  • A two week long skills immersion at the beginning of each semester, one focusing on litigation and conflict resolution, the other on transactional practice
  • Four elective courses, one real-client experience (either a clinic, an externship or a Transnational Human Rights program) and three additional electives taught in a problems-based, practicum style
  • At least forty hours of law-related service
  • Participation in a semester-long professionalism program.
I thought I'd look through this and grade everything on a scale of 0 to 5. 0 = absolutely useless; 2 = makes a student have about the same skills and hiring attraction as any other law student; 5 = makes law firm want to hire you more than the top Yale grad.

(1) Skills Immersion (2 weeks each) - 
Fall Semester: Interviewing, Partner Consultations, Client Counseling, Drafting, Client Communications, Discovery and Fact Investigation, Motions Practice, Persuasive Writing, and Advocacy and Trial Skills.
Rate: 2 (Good stuff, but too short a time period to be useful)
Spring Semester: Negotiation Training (adversarial v. interest-based negotiation); Mediation Training. 
Rate: 3 (two weeks is exactly the amount of time that a law school should spend on negotiation-mediation-alternative dispute resolution for the entire three years; hopefully the academic obsession with this useless sidetrack is dying down)

(2) One "real client experience"

Externship


COMMUNITY LAW CENTER AT THE OLIVER HILL HOUSE (Legal Aid / Civil Rights)
Rate: 1 (good experience if you plan to work in legal aid or civil rights - not much use otherwise & may tend to raise detrimental concerns with actual hiring law firms)
COMMONWEALTH’S ATTORNEY (Prosecutor's Office)
Rate: 2 (courtroom experience)
UNITED STATES ATTORNEY (Prosecutor's Office)
Rate: 3 (just the fact that it's the US Attorney looks good on the resume & exposure to the system)
STATE JUDICIAL EXTERNSHIPS (Research Assistant)
Rate: 2.5 (exposure to the system, a judge's thought process, and legal research)
 FEDERAL JUDICIAL EXTERNSHIPS (Research Assistant) 
Rate: 3 (exposure to the federal system, a federal judge's thought process, and legal research)
PRIVATE PRACTICE WITH GENTRY LOCKE RAKES AND MOORE (Assigned to a section: Corporate Litigation, Plaintiff Litigation, Insurance, Corporate Transactions, Employment, Land use/Zoning/Local Government)
Rate: 3.5 (wow, a real law firm)
Clinics


BLACK LUNG BENEFITS PROGRAM
Rate: 2.5 (administrative law practice; difficult)
COMMUNITY LEGAL PRACTICE CENTER (Legal Aid)
Rate: 1 (good experience if you plan to work in legal aid or civil rights - not much use otherwise & may tend to raise detrimental concerns with actual hiring law firms)
CRIMINAL JUSTICE CLINIC (Misdemeanor Public Defender)
Rate: 2 (courtroom experience)
TAX CLINIC (Legal Aid)
Rate: 1 (good experience if you plan to work in legal aid or civil rights - not much use otherwise & may tend to raise detrimental concerns with actual hiring law firms)
VIRGINIA CAPITAL CASE CLEARINGHOUSE (Assist the Defense of Capital Cases)
Rate: 3.5 (hard work and research in a complex area of law)

Transnational Human Rights


TRANSNATIONAL TRIBUNALS
Rate: 0.000005 (Really? Eurocourts?)
TRANSNATIONAL ACCESS TO JUSTICE
Rate: 0.000005 (Euroleftism?)
TRANSNATIONAL EUROPEAN COURT OF HUMAN RIGHTS - SERBIA
Rate: 0.000002 (Eurocourts as applied to one specific situation)

These would probably be very interesting courses and of no actual use whatsoever when the student tries to get a position at a US law firm.

(3) Electives taught in a problems-based, practicum style

Rate: 2 (a class taught at a law school is a class taught at a law school)

(4) 40 hours law related service -
Approved ways of getting hours: Legal Aid, Public Defender, Justice Center, Project Horizon, CASA, Virginia Poverty Law Center, ACS, VITA, Translator for any of the clinical programs, Innocence Project, Moot Court Board, Kirgis Fellows, Teaching Assistant for Undergraduate Mock Trial Team, Honor Advocates, Student Judicial Council (hearing work), Executive Committee (hearing work), and Law Journals.
Specifically Excepted: Work for a prosecutor or judge.
Rate: 1 - (A) Shame on Washington and Lee for the pettiness of refusing to acknowledge work for a prosecutor or judge as law related service. There's no way that is anything other than ideological and shows a bias against public service if it is not of a certain flavor. (B) This form of imposed community service seems to be an ongoing fad at law schools. At best it is a harmless imposition of the professors' and administrations' biases upon the student. At worst it forces the student to pay money to a school so that he can be forced to work in an area which may hurt his chances with certain firms.

(5) Semester Long Professionalism Program

The Professionalism Course will be taught by Prof. Moliterno.  The course will include units dealing with ethics and professional responsibility; the economics and financing of the legal system; examination of the "business aspects" of the profession; marketing and advertising of legal services; interactions with clients; a portraiture of the profession, including exploration of the different career paths and opportunities available to lawyers; time management and organizational skills; advanced instruction in litigation skills and the ethical issued posed by litigation decisions; advanced instruction in office practice and transactional skills and the ethical issues that arise in transactional practice; examination of the impact of globalization on law practice; examination of the impact of new technologies on law practice; discussion of work-life balance, stress, and lifestyle issues; exploration of the role of the lawyer as citizen participating in civic and community and corporate and leadership; and the future challenges, stresses, and "great issues" facing the profession.

Rate: 2  (I cannot tell exactly what this is. A year long ethics course would have gotten a 0.50. A year of being taught how law firms actually operate, concentrating on how the business aspect - tracking and paying taxes, hiring, file organization, business costs, etc. - is actually run in solo, small, and BigLaw firms would be a 3. The amorphous description above gets a 2.)

----------------------------


Overall Rating: 2

Let's be fair - W&L is not in competition with Harvard, Yale, Chicago, and Stanford. That's not to say that W&L is not an excellent school; it just means that if someone graduates from the aforementioned schools he will get hired just because of the school he went to without further examination. W&L Law is a school that gets you looked at above many graduates of other law schools, but it does leave you in a position that you have to compete and something has to be done to make you stand out.  W&L is to be lauded for trying to set up a program that gives its students an edge.

However, this program is flawed. You can get excellent resume boosters and increase your ability to get hired through this program, but you are going to have to walk a minefield and avoid what appears to be the majority of the program.

The problem is that the program above seems geared to steer students into a certain world view and force the majority of them to prep for legal aid jobs. Legal aid is wonderful work for those who actually want to do it. For those who actually want to do it. The majority of students want and, because of massive academic loans, need jobs in the private sector which pay well. With this in mind, the emphasis on legal aid types of work is greatly over emphasized.

To be certain, legal aid programs should be offered and if only one of the programs offered above was available (particularly the Oliver Hill House) I would have probably rated it a 3. However, three different legal aid programs (four if you count Black Lung) are too many so they split the three points. Writing simple wills is something any law school graduate should be able to do with ease. Tax returns for people without serious amounts of money or tax dodging issues is something that H&R Block teaches its temporary hires in less than a week. Neither is particularly impressive. If a student is looking for this kind of work upon graduation it should be available, but it really should be limited to those interested. It appears, from the dominance in the curriculum that students may be forced into this area if they actually want an externship.

And what the heck is that transnational stuff? Needs to be dropped. Desperately needs to be dropped.

The school really needs more programs like the one which puts students in an actual firm doing research and learning how a firm actually operates. I realize that this is a little difficult for W&L because Lexington, Virginia is a somewhat remote. However, the school needs to reach out to as many firms as it can and basically offer its students as apprentices. A resume stating that John Smith worked at an actual firm which does insurance defense or contracts, or PI, or any of a number of type of practice means he has actually been exposed to real legal work of a kind similar to what the hiring firm will have him doing. Now imagine that same hiring firm which does insurance defense or writes contracts for IBM, ExxonMobil, Ford, Microsoft, etc. getting a resume which says the student took a class on transnational justice or did legal aid. Think that's going to be a plus?

13 June 2013

The 5 Most Interesting New Laws in Virginia

It's that time of year again and the General Assembly's new laws are about to go into effect and here's the top five things that caught my attention.

1) The anti-cohabitation statute has been repealed. So, after 01 July it will be too late to file misdemeanor charges against that @#%$*@ who has moved in with your ex.

2) After a felony DUI conviction (the 3d), all DUI convictions are felonies.

3) "Foot-scooters" was substituted for "scooters" in a whole passel of statutes, but given exactly the same definition so there is no legal difference. They just decided to change the word.

4) Mopeds are now going to need Titles, Registrations, and License plates. However, officers will not be able to enforce against this until next year.

5) Virginia law enforcement is banned from using drones until 2015, "except in amber alerts, senior alerts, blue alerts, for search and rescue operations, or training exercises for these."