Virginia: Proposed New Criminal Laws : Police on the Street

So, the Virginia General Assembly is going back into session on Tuesday, 18 August 2020, for a session which I believe was originally meant to be about fiscal problems caused by the 'Rona, but has mutated into a session which I've heard called everything from the anti-police session to the criminal law reform session. As it currently stands, the bills introduced have ended at SB5047 and HB5044 (17 August 2020). I won't be surprised if all sorts of bills drop tomorrow, but there are a limited few as of today and here's my short breakdown and off the thumb analysis.

 

 Changing Substantive Law Regarding Officer Protections

SB5029 - This bill would raise the bar for felony convictions on attacking a police officer, requiring an actual battery (not just an assault) and "a visible bodily injury." It will also do away with the mandatory minimum six months in jail upon conviction.

To be fair, this statute needed a little more nuance. A person who missed when she threw a pebble at an officer faced the same punishment as someone who jumped out of an alleyway and hit an officer with a crowbar. However, it would probably have been better if they'd left the mandatory time in for a class of more serious offenders.

Flaws: The visible bodily injury would seem to leave out things like broken bones or torn ligaments or internal organ damage all of which could be as bad or worse than a visible injury. 

Unintended Consequences: The removal of the mandatory minimum six month sentence will probably result in more felony convictions. Previously, there has been a strong incentive to lower lesser batteries to misdemeanors because six months was a disproportionate sentence. That will be gone with the passage of this statute.

 SB5010 - This statute would increase the punishment for assaulting or battering a police officer to a mandatory minimum year or two years if it happens during a state of emergency.

DOA - Less chance of passing in the current General Assembly then I have of inheriting Bill Gates' billions (I'd be satisfied with just 1 or 2, Bill).

 

Changing Police Street Enforcement Procedures

 SB5002 - This bill would make it illegal for officers to use "choke holds."

This method of disabling a combative individual has held on in law enforcement because it is an effective means of bringing down someone without resorting to disabling sprays, electric shock, metal batons, or bullets. This is just the General Assembly removing choke outs from the use of force continuum. It may well have the consequence of hastening the officer up the continuum to more drastic means of gaining control with higher potential lethality, but that's the General Assembly's call.

HB5029 - This bill would make an officer failing to stop another officer from using unlawful force guilty of a class one misdemeanor or a class 6 felony if deadly force is used or a class 4 felony if the citizen is killed or suffers a permanent injury.

The difference between necessary force, unlawful force, and deadly force is going to be highly subjective. This could also subject officers to gamesmanship as yahoos go to the magistrate and try to take out misdemeanor charges against officers.

SB5030 - 

(1) Forbids choke holds.

(2) Forbids shooting at a car unless it is a danger to a person.

(3) Forbids use of deadly force unless necessary. Lists circumstances in determining whether necessary including whether the officer tried to de-escalate.

This is dumb. It assumes officers don't already abhor killing someone. I've known officers involved in fatal shootings; they are shaken by it. Also, they always attempt de-escalation as best the situation allows it. 

(4) A police officer witnessing another officer using unlawful force shall intervene and report the unlawful use of force to her superiors.

(5) Punishment as proposed under this bill for 1 thru 4 would be disciplinary action.

SB5029 (0, Defense~5, Rights~5) - This bill would make several offenses "secondary offenses." In other words, it makes it illegal for officers to act against these illegal activities unless another offense occurs first. This is the General Assembly trying to eliminate what the defense bar has called for years "pretext stops." It affects bad mufflers, bad license plate lights, noisy exhaust systems, illegal window tinting, items hanging from rear view mirrors, and possession of marijuana. Furthermore, it makes any evidence found after a search pursuant to the odor of illegal marijuana inadmissible in Virginia courts.

That last part is interesting and may be constitutionally suspect. Can the General Assembly tell courts to ignore evidence found pursuant to a search based on solid probable cause of illegal activity? A little research makes me tend to think they can, See Greenwood, but I don't see how that can be a universal rule. Imagine if the General Assembly were to write a law stating that although rape is illegal no evidence found pursuant to a search based upon probable cause that a rape occurred is admissible in court. I don't see how that could stand, but I don't have the time to sit and puzzle out a valid rule that would apply to both situations equally. There might be some sort of Moore-ish work around. Maybe after I finish breaking down all these potential statutes I might have time to come back to it.

The New Jury Selection Statute (Virginia)

Last time, I used the new jury selection statute as an example:

The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.

That part of the statute is just rife with potential for abuse. To begin with, nobody really believes the part proclaiming its purpose. I would respect this a lot more if they'd just stuck a period after punishment and struck the rest of that sentence. I don't expect legislators to admit that they are trying to bake in potential jury nullification, but leaving it blank would have been better than adding the wink-wink, nudge-nudge "sure we mean that it's only used for sentencing purposes" language. There are other possible solutions to the problem identified which would have accomplished the same thing without risking jury nullification:

§ 19.2-00000: Sentencing Fairness

Upon motion by the Defendant after a jury has found him guilty, the judge shall inform the jurors of the sentencing range and question the members of the jury to ascertain if any individual jurors cannot set a sentence within that range. The judge shall remove individual jurors who cannot set a sentence.

Should the number of jurors remaining be seven or more the jury shall retire and determine an appropriate sentence.

Should the number of jurors remaining be less than seven the judge may proceed directly to sentencing without a jury recommendation upon the agreement of the defendant, attorney for the Commonwealth, and the trial judge. If a judge does not proceed directly to sentencing a new jury shall be empaneled specifically for the purposes of determining the sentence.

Nothing in this statute shall authorize either the defendant or the attorney for the Commonwealth to question the jury.

But, I can here someone stammering, that removes people from the jury who might argue for a lesser sentence because they don't agree with the sentencing range. The only problem with that statement is that if the statute actually adopted above works the way it proclaims it is supposed to it would eliminate the same people. The one I propose would be a trade-off. In order to receive a pristine finding in the culpability phase it has a potential to sacrifice several jurors in the sentencing phase who, if voir dire is done properly under the adopted statute, would never be there to begin with. So, it doesn't eliminate a mindset that the General Assembly proclaims it wants in the sentencing phase; it eliminates a mindset which the General Assembly has stated it wants eliminated. Of course, the statute I propose wasn't the one adopted so let's look at how the actual statute can be applied.

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Best Practices

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 As I see it, the defense should probably make a motion in limine to have the judge introduce the possible punishment and ask a general question as to whether there are any jurors who cannot apply it if there is a conviction - foreclosing the parties from asking questions about the sentence. This should probably go something like this:

Judge: The offense charged today is the illegal hunting of snipes, a felony which carries a punishment of between 5 and 40 years incarceration. Does anyone believe that if Mr. Jones is found guilty they will not be able to impose that sentence?

A judge will, and should, want to do this as a means of controlling the chaos in his courtroom by foreclosing any games played around the introduction of the potential sentence by the parties.

The defense will want this because the defense isn't actually interested in striking jurors who disagree with the level of sentence required for a charge considering the set of facts in the particular case. Presuming honest jurors, those jurors who disagree with any punishment for snipe hunting or think snipe hunting should be punished with a fine and not a felony will be struck even from the judge's question. However, by having the question come from the judge and forbidding the parties to question jurors about this the defense would preserve jurors who generally agree with the sentence provided by statute, but would think that it's not appropriate if all the prosecution can show is the defendant shot one snipe that was in his back yard.

On the other hand, if the jurors are going to be informed of the sentence range, the prosecution almost surely wants to have questioning of the jurors in this area to be done by the parties - specifically by the prosecution. Again, assuming honesty from the jurors, those jurors who disagree with any punishment for snipe hunting or think snipe hunting should be punished with a fine and not a felony will be struck even from the judge's question. However, the prosecutor has exactly the opposite motivation of the defendant. She wants to eliminate those jurors who generally agree with the sentence provided by statute, but would think that it's not appropriate if all the prosecution can show is the defendant shot one snipe that was in his back yard. She badly wants to ask a question something like this:

Ladies and gentlemen, the judge has told you that snipe hunting carries a punishment between 5 and 40 years. Snipes are so rare that almost none of us have seen one and the General Assembly has determined that they are a species requiring a high level of protection because they are endangered. If the Commonwealth were to show beyond a reasonable doubt that someone knew that this creature - so rare it is almost mythical - was coming into his backyard every couple days and that person didn't contact animal control or conservation officers or even try to capture the animal himself to release it into the wild but instead sat in wait and shot the animal - if the Commonwealth proves all this, could you impose the 5 to 40 year sentence? Please raise your hand if you can. Now please raise your hand if you cannot.

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When I first saw this statute, I figured the best way for it to be handled is for the judge and the judge alone to ask the question. However, as I've mulled it over, I've come to the conclusion that this would unbalance the trial process. If telling the jury and limiting questions to the judge is the procedure adopted in the courtroom it is at best neutral and at worst introduces a factor in favor of the defendant that has nothing to do with the defendant's actual culpability. Worse, unless the judge has in depth knowledge of the facts of the case he probably shouldn't have pretrial he won't be able to determine if it introduces a prejudicial collateral issue. Therefore, I've changed my mind on this.

I think best practice under this statute will probably be as follows:

1. The Judge tells the jurors what the sentencing range is.

2. The judge asks generally if the jurors would have difficulty in imposing a sentence in the range.

3. The prosecution asks questions similar to the one above (during normal voir dire). 

4. The defense has an opportunity to ask questions (again during normal voir dire)

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As to 3 above, this might well be characterized as "witherspooning lite." Witherpspooning has been the practice of questioning jurors in order to eliminate those who categorically will not impose the death penalty. However, in most other violent or large theft cases the prosecution probably shouldn't bother to ask questions about the range of punishment. After all, you aren't going to find many people who think that heavy punishment should not be imposed in ponzi schemes, rapes, murders, etc. It's only in cases where the prosecutor believes the defense is shooting for jury nullification based upon a possibility that the jurors will decide the potential sentence is too high that a prosecutor should engage here.

As to 4 above, I'm not sure a defense attorney should engage here at all. After all, he's not able to say out loud that the sentence range is so high that his client shouldn't be convicted. That is grounds for a mistrial if said after the jury is sworn in and if done during jury selection it's grounds to dismiss a tainted jury venire. While there is probably someone more clever than me who may figure out a way to raise a pertinent question that colors inside the lines, IMHO it's a situation where the foundation has been laid by the judge and the prosecution has probably built somewhat on it. After all, the prosecutor had to point out that only one snipe was killed in his question to the jury. A competent defense attorney can work with that in opening statements, questioning, and closing saying "one single snipe" a lot so that the insignificance of the crime sinks in without ever mentioning the range of punishment.

About the only time the defense should raise this is when the judge and prosecutor fail to. If the judge refuses to state it during her brief initial voir dire ("I believe the parties can handle this adequately.") and the prosecutor commits malpractice by not addressing it in his voir dire then, if the case is one in which the facts may seem minor compared to the range of punishment, the defense should raise the point.

Snipe hunting carries a punishment of 5 to 40 years. Does anyone have any problem with that?

The first sentence would be said nice and loud; the second - not so much. Basically, the defense wants to get the information out there, but doesn't want to strike anyone who actually has a problem with that sentencing range because they would presumably come down on the side of the defense.

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If we ever get back to doing jury trials (sometime in 2025 after they've built cones of silence for every juror), it's going to be interesting to see how the judges handle this and what case law develops.

The Measure of a New Criminal Law

I've been trying to come up with a model for determining what the effects of a new criminal procedure statute are and think I've come up with a workable model. 

[Elitist] E5 . . . E4 . . . E3 . . . E2 . . . E1 . . . 0 . . . D1 . . . D2 . . . D3 . . . D4 . . . D5 [Democratic]

[Defense] D5 . . . D4 . . . D3 . . . D2 . . . D1 . . . 0 . . . P1 . . . P2 . . . P3 . . . P4 . . . P5 [Prosecution]

 R5 . . . R4 . . . R3 . . . R2 . . . R1 . . . 0 . . . O1 . . . O2 . . . O3 . . . O4 . . . O5

[Individual Rights]-5 . . . -4 . . . -3 . . . -2 . . . -1 . . . 0 . . . 1 . 5 [Societal Order]

 

You could picture this as a 3D model, but I'm not competent enough with 3D modeling to give you a graphic much above crayon level. So, you'll get it as coordinates: [Statute] (D1,0,R2).

Elitist-Democratic: There is a disturbing tendency in the American judicial system to move toward autocracy. This seems to happen no matter the political leanings of those passing laws and it's understandable behavior.  Juries are messy and the ultimate indicator of local democratic decision making. The best form of this would be a jury finding innocence-guilt and, if it finds a defendant guilty, setting the sentence. And that perturbs just about anyone in the legal system from lawyers to judges to legislators. Juries are inefficient, inconsistent, and consider factors they shouldn't no matter how often they're told not to. Their primary sin in the eyes of the legal elites is that they are not a controlled, predictable factor and everyone hates that. A D5 here would be a system in which juries are a default that has to be waived by both parties and the judge, juries sentence, and even upon a plea of guilty juries sentence in serious crimes (rape, murder, robbery). A E5 here would be a system in which juries are theoretically allowed at the behest of the defense only, but for all practical purposes are banned by a combination of laws, practices, and procedures. Virginia's current location on this scale is probably somewhere between a E3 to E4 (and I doubt many States are different). Very good in theory. Withering on the vine in reality.

Defense-Prosecution: Pretty self explanatory. As a side note, let me say that in order to avoid any bias, I used a random number generator (1-5=Defense; 6-10=Prosecution) to choose which would be positive and which would be negative numbers. I even went best three out of five (Number Order was 8,7,8,3,5).

Individual Rights - Societal Order: While these two don't necessarily oppose each other, in every society they are going to conflict at some point. Thus, they make a useful semi-dichotomy.

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Let's test this out by running Virginia's brand new jury selection law (voir dire) through it. § 19.2-262.01 is a law which generally repeats much of the normal processes already used, but hidden in its core is  this gem:

The court and counsel for either party may inform any such person or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.

This overrules a Virginia Supreme Court decision that rejected this as an obvious call to jury nullification. Those against this law point toward that conclusion. Those in favor tend to avert their eyes, grin, and assert that the second part of that sentence is for real and not a rice paper thin excuse. And then there are the truly dedicated superprosecutors who tell me I'm an idiot, rub their hands together, get malicious grins, and start muttering something about "whitherspooning" - not that I have the vaguest idea what they're talking about (some of you guys are slightly scary - and you, the guy in the back from Pitcairn County, stop cackling - no cackling is allowed on the blog).

Anyway, I rate this part of the statute § 19.2-262.01 (D5,D3,R3).  

[D5] You can't get much more democratic than to give information to a jury that has nothing to do with actual guilt or innocence and allow them to have it to nullify if they disagree with the punishment assigned the crime. 

[D3] Despite the joke above, does anyone actually believe that a judge will allow extensive whitherspooning in a theft case or a DUI? This will play out most often in the defense's favor in the form of jury nullification.  

[R3] Order would call for the determination of innocence or guilt to be decided without any collateral issues coloring the decision. Telling the potential sentence introduces a factor that will either be neutral or break in favor of the defendant that has nothing to do with whether the defendant committed the crime of which she was accused. It's not exactly a constitutional right, but it is a statutory right awarded to the defendant by the General Assembly.

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Next, I'll try to find enough time to do this in future posts for the proposed statutes of the August session of the Virginia General Assembly.

 

 

[addendum] I changed from a positive/negative system to the way it is above to avoid any implications of value judgment in the use of negative number.

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Purposeful Confrontation in Northern Illinois City

I was looking for information about proposed social programs which are being proposed to replace police departments and this popped up. I think it might have been because of the very last question where the Superintendent says Chicago needs both.

This is last weekend. The attackers came with a shield to the front and overhead and weapons to bombard the clearly unprepared Chicago police officers. It's hard to say how many people are involved in the attack, but it looks like more than the officers on site. The objective appears to have been for the attackers to bombard the officers from behind their shields in order to get the police to do something that could be used as propaganda.

Does the ADA Override a Governor's Mask Requirement?

If you've talked to anyone about masks (or gone within a mile of social media) since they became the latest thing that is going to save us all, you've heard several arguments for and against their effectiveness. To be clear from the outset, I think they are an effective tool for stopping someone with congestion who is coughing, sneezing, or having nasal discharge from spreading the disease.¹ I think when they are used by the asymptomatic they do little to keep anyone from catching a disease and are a long-tail solution with minimal effectiveness.² However, it doesn't terribly bother me when I wear one in public. If the irrationally fearful are soothed somewhat by an asymptomatic person (me) walking past them wearing a mask at a grocery store that I know probably only changes their chance of getting the disease (were I infected) from something like .00003% to something like .00001% ³ then I'm okay with giving them a little respite from the fear the media has done its level best to drum up and drive home every second of every day.

That said, let's address the argument that's now being used to support their use. (1) You have a right not to wear a mask, but (2) a business also has the right to exclude you for not wearing one. That's true as far as it goes, but leaves out the third element: (3) It's still a governmental action if the government requires the business to do it. That third step changes this from something under trespass law based on personal preferences of the business (no one wearing Steelers gear may enter this store⁴) to the business acting as government's enforcement arm (sin tax imposed by a State on anyone buying Steelers gear, but collected by the merchant). A day to day customer may not care about the difference; all that's really pertinent to him is that his shopping experience has had burdens placed upon it. However, understanding who is requiring the wearing of masks makes a difference in understanding how far the mandate can go.⁵ Your mandate comes from your State government and it's probably from your governor speaking per ipsum without the specific approval of your legislature.⁶ The State government can hide its individual mandates by requiring private businesses to enforce its mandate, but the mandate is still a State government mandate.

And therein lies the rub. People and businesses (1) know the federal government's laws carry more weight than the States' laws⁷ and they (2) know the Americans with Disabilities Act (ADA) exists. Businesses have a positive requirement under the federal law and regulations to accommodate people with disabilities. They are also not allowed to inquire as to the nature of a disability.⁸  For public accommodations - such as a store - a disability includes being "regarded" as having an impairment that significantly limits a life activity.  28 CFR 36.105.  The federal government requires "disability" to be given a broad interpretation. 28 CFR 36.101(b).

Faced with a preemptive federal law, many businesses are not stopping anyone who enters their stores without masks. They are assuming that the unmasked person has a disability which the business is not allowed to ask the unmasked about. It's also amazing how quickly I heard people saying that if questioned they would pull out the disability card and refuse to answer what their disability is because the question is illegal to ask.⁹  A lot of people and businesses are applying the ADA as they understand it with an understanding that it overtops any directive the governor can dictate that businesses require people to mask.

Are they right? Can a business use this as a defense when the Virginia governor's health department brute squad comes knocking at the door? 

It appears so - assuming the courts operate in a dispassionate manner, interpreting the law strictly without letting themselves be influenced by the ongoing panic or politics. On the other hand, the ADA is supposed to make businesses accommodate disabilities and 30 out of 35 customers at a store not wearing masks isn't accommodating disabilities - it's 30 people taking advantage of a loophole to avoid a dictate from the governor. It ends up being a questionable loophole provided by federal regulations against questionable dictates being mandated by governors without specific backing from their legislatures.

Do I expect to see big lawsuits about this? No. I do not. Let's be honest. On the one side you have governors who are engaging in health theater. They aren't going to start shutting down Wal-Marts and grocery stores. On the other side, the companies with enough money and resources to fight something like this in federal court are supremely uninterested in doing anything other than making money and protecting themselves against lawsuits from people with actual disabilities. Sure, were they to deny entry to a person with COPD or heart issues because they weren't wearing a mask the companies could face a lawsuit of their own, but their argument would be that that person is endangering himself by simply being at the store. And the odds of such a lawsuit getting anywhere before all this fades away are low indeed (federal courts consider snails to be speedsters).

That fact renders this a mostly intellectual exercise for lawyers. For regular persons its just another gubernatorial imposition which quiets the strident and is at best tolerated and at worst ignored by the majority. At least this time it's a relatively minor imposition.¹⁰ 

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¹ This is the much lauded person urinating on you scenario we all heard when people were first pushing masks. No pants means the person hits you. You panted means it provides a slight barrier before soaking through. Pants on him stops the fluid from ever reaching you. The scenario is true as far as it goes, but it only makes sense if it assumes incontinence. Otherwise there is no threat of you getting wet. It works the same way for sneezing and coughing.

  

²  Think your governor is implementing the best available solid, rational, scientific solutions? Then ask yourself why none of them have banned air-conditioning. Viruses die in heat and humidity. COVID-19 has been proven to follow the same pattern. Human beings can survive without air conditioning making our spaces cold and dry. Some of us are old enough to remember the days before AC when we all had to make do with *gasp* fans and iced drinks to survive the Summer. If we banned AC from public accommodations and homes of anyone under 60 it would likely make a bigger dent than masks. You think any governor is going to be brave enough to do this? 

 

³ Those numbers are WAG's folks. Anybody who tells you that they can give you accurate numbers for an uncontrolled situation such as this is full of bunkum.

⁴  Clearly, I am only using this as an example because some places ban sportswear because gangs have been known to wear sports clothing to indicate their affiliation, not because the Steelers are evil incarnate perhaps only surpassed in their ghastliness by the St. Louis Cardinals.

  

⁵  Please note that I am not addressing the various arguments that the mandate itself is a burden on the constitutional rights of individuals. Of course it is. Almost any action undertaken by government burdens an individual's constitutional rights. The question is whether the burden is so much that it is not allowed and I'm not addressing this question today.

 ⁶ No, will not opine on the legality of this in each State. There are 50 States for goodness sake. I know I don't have much of a life, but even I haven't got the time to look at the constitutions and laws of all fifty States and opine on each.

⁷   "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." US Constitution Article VI.  This is expanded upon by the preemption doctrine which says the if federal law conflicts with State laws the federal law shoves the State law to the side and is the law that applies.

⁸  See 29 CFR 1630.13(a) (cannot inquire about disability before offering a job), & 29 CFR 36.302(c)(6) (cannot inquire about the disability of a person entering with a service dog). Arguably the latter forbids the question entirely: "A public accommodation shall not ask about the nature or extent of a person's disability." Even if it doesn't it's a clear indicator of where the law stands.

⁹  I live in the land of former coal miners. Heart problems, lung issues, and long term physical injuries have given a lot of people a working knowledge of disability law.

¹⁰ And, judging from what I see, one that has faded fast. I imagine there are places where it may be strongly enforced and followed, but where I spend my time there was a surge in use immediately after our governor's dictate which fell off in days. Go to a gas station, fast food restaurant, or your local grocer and the only people you see wearing masks are the employees and a good number of times they're following the governor's example and wearing them under their chin.

A moment in Court: I Decline!

Jane Smith is having a hearing to determine whether she is competent to stand trial and she demands to speak to Judge Greene. It wasn't my case so I didn't see the whole thing, but it caught my attention when I walked into the courtroom and Jane started talking about the Judge's ex-wife.

Judge Greene's head bobs back and all the attorneys in the courtroom look over at Jane and then up at the Judge. For her part, Jane doesn't even notice. She just starts describing the atrocities that the Judge's ex has done to her in the jail. After a little of this Judge Greene gets his feet back under him and interrupts Jane.

"Ma'am, I don't have an ex-wife."

This, of course, bounces right off Jane and she keeps going. For the next fifteen or so minutes I'm walking in and out of the courtroom trying to take care of my case, but each time I walk in Jane is trying to convince the Judge that he has an ex-wife, she works at the jail, and she has been doing terrible and strange things to Jane.

Finally, things start to wrap up. To absolutely no one's surprise, the Judge finds Jane incompetent.

"Ma'am, I'm ordering that you be transferred from Pitcairn County Jail to Better Minds Mental Care Hospital for treatment to restore you to competency."

"I decline."

The Judge had started to write some notes so his decision could be reduced to a written order, but at Jane's statement his head comes back up looking bemused.

"Excuse me?"

"I decline to go to Better Minds."

Up to this point, the Judge has been remarkably calm and patient considering the fact he just found out that he has an ex-wife who is apparently tormenting inmates at the local jail. Now he looks like the patience might be slipping a little bit.

"Ma'am, I can't force you to cooperate with treatment, but you're going to Better Minds. If you don't cooperate you'll probably be there longer than you need to be."

"I decline to go to Better Minds and I decline any treatment."

At this point, I have to leave the courtroom to deal with some absolutely vital matter (probably had to sign some discovery order or something). I never saw how the case ended exactly. However, I have to say that the "I decline" defense is a novel and interesting one. All sorts of innovative uses come to mind. 

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Judge:  For the crime of bank robbery, I sentence you to 20 years in Black Plague Supermax Penitentiary.

Defendant:  I decline.

Judge:  Ummmm . . .  Okay, how about 10 years at New Hope Medium Security?

Defendant:  I decline.

Judge:  Okay, look, I have to sentence you to something. How about we take advantage of our Canadian prison exchange program? You spend two years in a Canadian penitentiary where they feed you caribou steaks and sauteed truffles while apologizing to you every day because the unenlightened bank tellers couldn't understand the robbery from your point of view and how it wasn't really your choice but a reflection of societal failures? How about that?  I do have to warn you that Canadian prisons are infested with house hippos and you will probably be forced to eat poutine, which is considered cruel and unusual punishment here in the States. Still, most people think that's balanced out by the daily hockey games and availability of maple syrup for every meal.

Defendant:  Yeah, okay. I can take that.

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I think any defense attorney who doesn't recommend this exciting, new technique to their client may be committing malpractice.

2020 New Virginia Criminal Laws

Before you watch, open New_Laws_2020(a).pdf . If that link doesn't work, go to kenlammers.com and under New Laws open the file that says New_Laws_2020. You'll need it to understand what I'm talking about. I start at the beginning of the document and work my way through to the end.

Sorry that the sound is out of sync for the first twenty or so minutes. I've tried to fix this for a couple hours with different programs and eventually gave up. At about the twenty minute point it fixes itself.

COVID-19 - The Wind Up and the Screw Ups and The Refusal to Lock Down

This is my last entry about Coronavirus/COVID-19/SARS CoV-2. I kept trying to think things through and look for the best sources I could find for actual statistics and studies. This got responses which ranged from "Look at NYC, you idiot! We're all doomed if we sniff the air outside our house!" to "You want to kill everybody's grandma just so you can go to a movie!" and have gotten more and more strident as the original sources and models failed and it became clear that, with the probable exception of NYC (the city, not the entire state), the reactions across the US were overreactions taken without considering the massive damage they could cause.

Mind you, if any politician worth his salt is told by the Imperial College that 2.2 million Americans are going to die if nothing is done and by his own federal government that up to 240,000 will die even if we lock the country down under quarantine, he is going to act. And by and large they did. They did this on blind faith and without considering the how massive the damage their solution could do long term.

I don't blame them for this. Garbage in = Garbage out and they were fed garbage. The impetus came from a source we now view as less trustworthy than expected. A lot of the reaction came from ignorance; we just hadn't studied the disease enough to know what we were dealing with (we still haven't even though the picture is clearer). And finally, they were told that they had to act NOW! The fact that some of them didn't and got better results is more than a little amazing.

The Imperial paper turned out to be mostly fiction. And it's our experts' fault for believing it. They took the paper at face value without considering that the man who produced it is known for making extreme predictions that at least one prior time led to economically devastating consequences.  In 2001 his flawed modeling for a foot and mouth breakout led to the destruction of 6,000,000 animals in Britain destroying the rural economy. That same year, he predicted 136,000 deaths from Mad Cow Disease over a period of decades - there have been 176 deaths in the United Kingdom since 1996.  In 2006 he predicted up to 200,000,000 deaths from the bird flu - the total number of deaths between 2003-2015 was less than 500. This man does not need to be the person upon whom governments depend to set policy. It's not surprising that with a beginning based on imaginary numbers the models crashed and burned - again and again.

Other facts surfaced. Some were predictable. One, the government's report that the virus, SARS CoV-2, dies when exposed to heat and humidity is similar to its predecessor, SARS CoV.  Another, that the disease is primarily dangerous to those with pre-existing medical conditions and the elderly (CDC: 49,701 deaths 55 years or older / VDH: 558 deaths in Virginia 60 years or older) is consistent with what happens with many viruses (CDC: similar to "recent high severity influenza seasons.")

Many other facts were unusual. The fact that it barely affects school age children and has a mortality rate that is, with a few very far out outliers, 0% is not something that was expected (CDC: 12 deaths in US under 14 years  / VDH: 0 deaths in Virginia under 20 years). It also seems that, unlike the flu, children are unlikely to spread the disease (Australia / Switzerland / United Kingdom). Also, the fact that the stay at home orders have not accomplished the results promised has been shown by a growing number of studies once antibody tests became available (Heinsberg: 15% infection / Los Angeles: 4.1% [28-55% higher than reported cases] / NYC: 21.2% / Chelsea [Boston]: 32%).

To be fair, I haven't been the best prognosticator either. I thought the resistance to the various governors' orders would start sooner and that the governors would try to hold out until they were getting weather in the 70's to make viral spread more difficult and help avoid the spike the media is working up everybody's fear over (personally, I thought the disease would hang on in various states until the temperature started hitting 70's every day in that state). While there were plenty of people passively resisting the orders, more active resistance didn't start until recently. As to the end of the semi-quarantine, I think the pending economic collapse of the medical industry, petroleum industry, the various state unemployment funds, etc. scared them into quicker action. None of the big dominoes has fallen yet, but they can see them starting to lean and it scares the living daylights out of people in charge. They sure as heck weren't motivated by the damage they have done to millions of small businesses around the country; there the general point of view seemed to be "Who gives a bleep about the kulaks?"

So, where are we? Well, we've set a course. We will come out of semi-quarantine in the next month or so and wait to see if the pressures against the economic suicide of going back into lockdown are enough to counterbalance the panic which the media will gin up with even the slightest spike. Assuming we don't turtle back up, the next worry of everyone will be that COVID-19 / SARS CoV-2 will hit again in the fall like the flu or the common cold. That's not really consistent with what happened with SARS CoV, but of course we'll never be able to prove it won't happen until we've gone through the time frame.

Of course, assuming things wind down and all the predictions of doom come to naught, next will come the claims of victory and that the lockdowns saved us all. With that in mind, let's look at what actually happened.

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Comparing Non-Lockdown to Lockdown and the Worst

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 Method: To avoid getting told I was cherry picking or data mining, I looked up a map published by the NYTimes that had States which had never had a lockdown and States with shorter lockdowns (as well as the remainder who were locked down). I put both of those groups into the list I was checking. Then, I added all the States about which I remembered there being big stories about COVID-19 being a big problem. Finally, I added Virginia and all the States bordering her including D.C. Then, I broke them down into the 10 States that suffered the least harm, the 10 States that suffered the most harm, and leftover States. Here are those charts:

States That Fared Best

States That Fared Worst

The Remainder

And here's a map of it:

All Greens=Fared Best / Red=Fared Worst / Lt Grn=No Lockdown / Lt Grn Dots=Shorter Lockdown / Purple or Purple Dots=Remainder States

Looking at it, here's my hypothesis of three factors which I think probably combine to make this disease bad in certain locations:

1. High density population area.
2. Significant use of mass transit.
3. Colder temperatures.

Of course, like all things of this nature, that's a simple answer subject to all sorts of variables depending on each State's particular circumstances. For instance, New York seems to be the only place that required nursing homes to admit COVID-19 patients and purposefully moved COVID-19 patients into nursing homes. However, if you step back and look at the trends, each has a city with a serious mass transit system (except maybe Washington State). All but two of the States are north of that line which starts at the bottom of Virginia and goes across most of the United States. All of them have high density populations concentrated in older cities. The one which most breaks the model is probably Georgia where Atlanta seems to be a more modern suburb dominated city with people driving their own cars and it's clearly Southern (admittedly this is all based upon impression - I have not done in depth research into the city).

Conversely, the States which have fared better haven't done better because they are filled with saints. They are generally States where development has occurred in more modern times and people drive their own cars rather than use mass transit. Their population densities tend to be a lot smaller. And the ones without lower population densities are in the South. Texas, Tennessee, and North Carolina all have major metropolitan areas, but their populations are more spread out and suburban and the vast majority of people drive themselves rather than use mass transit.

It's not a perfect model and like all things in this sort of non-testable area of study it can't be proven or disproven entirely. All you can really do is step back, look at the big picture, and look at trends. These seem to be general trends that match what has happened in the US. Admittedly, they come first from an examination of NYC with its massive overpopulation, overcrowded mass transit (which city officials insisted was safe), and temperatures topping out in the 50's or lower when the disease ramped up. However, the same factors do seem to apply generally across the country.

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And, that's it. No more COVID-19 discussions unless something really, really interesting happens and I can't help myself. Which, once we open up and I can start working again, I hopefully won't have time for.

Lock Down: Let's look at the Results

The most accurate method for measuring outbreak of COVID-19 is the number of deaths. It can still be inaccurate if some are missed or the there are deaths included which are "presumptive" or where a primary cause is ignored to blame the disease. However, it is better than almost any other. Tested positive is probably the worst because it depends on how many tests are available and how they are used (there will never be one test for all 327,000,000 of us).

I live within an hour of five States. Tennessee, got slammed for staying open longer and not coming down as hard on their citizens as other States. Kentucky has been the darling of those who think shutting everything down is the proper model. There was even bit of fluff that spiked in social media and some news sites comparing number of cases in Kentucky and Tennessee to make it look like Kentucky has done better.

Here's a chart of absolute case numbers (current as of 13 April):

Population: Va-8.5m, Tn-6.8m, Ky-4.5m, NC-10.5m, WVa-1.8m

Here's the chart by death rates in each State:

Are lock downs working?

Latest COVID-19 Number Boosting in Virginia

Changes the Virginia Department of Health has been making in Numbers of Cases from day of first showing symptoms - Click to Enlarge

Fourth time I've checked. Fourth time the Virginia Department of Health has increased the numbers.

 

The numbers of new cases the Virginia Department of Health has reported as of 12 April 2020. The last two weeks look about the same, so I checked them and it turns out the latest week averages slightly more:

Weekly Average of New Cases: 138 to 185 to 200

The chart was done with a week measured as Saturday thru Friday, because apparently people aren't getting the disease over the weekend. More realistically, they aren't going to get tested or being allowed to test if they go and then they are being tested on the next couple days and causing an artificial jump on Mondays and Tuesday. Therefore, those days should be balanced out with the days of the immediately proceeding weekend.

As I said in my last post about the lock down, it's really difficult to know how much of more recent numbers are from more availability of tests. This makes the third week's jump of 15 extra cases on average per day a questionable figure. We'll have to see how the numbers play out for the next week (the stuff in the gray on the chart above).


VDH is still not offering explanations.

NEVER Agree to "Universal Diploma Privilege"

I'm tired of seeing people trying to take advantage of the current medical situation. We've all seen it. An example pertinent to the lives of the criminal attorneys has been the attempts of convicts to get out of their already imposed sentences because of SARS CoV-2/COVID-19/Coronavirus. Not because the disease is in whichever jail or prison they are in - just because the disease exists.

And the attempts are happening outside the criminal justice system too. Here's one where a law professor wants to do away with Bar exams in general and is using the disease as an excuse. He wants everyone who graduates from law school to be able to practice (I guess everywhere?). This has been something law professors and schools have floated in recent times and maybe further back, but it only came to my attention over the last couple years. Why do they want to do away with the Bar exams?

Because law schools and law professors are not, as a whole, fans of the Bar exam. Why not? Because it's the only true metric in measuring the kind of student they're graduating. Sure, a top-five law school might be counted on to graduate potential top tier lawyers, but that's a function of their ability to pick and choose exceptional students for whom law school provides little improvement in their chances of passing the Bar exam. Somewhere near 100% of those students could probably take a bar prep course and pass. But what about schools farther back in the pack? The Bar exam and the Bar exam alone is the only way to see how a law school is doing. If the number of graduates from a particular school passing the Bar is too low it loses its accreditation with the ABA (possibly the only worthwhile thing the ABA does) and once that's gone the school is done.

So once you're not looking at Harvard or Yale, Bar passage rate is the important delineator between a good law school and a bad one. Law schools further down the rankings will take a certain amount of students who are marginal when it comes to passing the Bar. How well does that school handle this? Does it concentrate on making sure its students understand basic areas of the law and reinforce that understanding? Or does it push courses concentrating on Literary Critiques of Supreme Court Decisions and the Law According to Far Eastern Religions? The former is very important; the latter would probably be more fun. And you think a law professor who's been teaching Contracts and Property for the last thirteen years wouldn't like to do something more interesting than explaining the doctrine that "and" and "or" can be interchangeable in certain contexts for the 57 thousandth time to students who can't grasp that it's not an all or nothing proposition the first ten times he explains it? If it has to get students past the Bar you are more likely to see the former and graduate students who have a clue when they start practicing instead of students who can discuss exactly and in detail what Shakespeare meant by "First we kill all the lawyers" but couldn't define a larceny to save their lives. Law schools and professors would rather they didn't have to do the boring stuff, or at least not be required to do it well, and the only way they're let off the hook for that is if there is no standard. And the only way there's no standard is if there's no Bar exam.

And, let's face it, law schools are entirely unnecessary. They are a profit center for universities which don't provide much for a student. There were two prior models which worked just as well and didn't economically punish the student nearly as much for wanting to practice law. At one time you could get an undergraduate law degree. I often see this called an LL.B, but I think US colleges may have been looser in their nomenclature. I've only met one person who did this and he was the founding partner at a law firm I interned with during law school. He said his undergraduate degree was called an LL.M, which in modern times would be a fairly useless master's degree offered after graduating law school. Anyway, there's no particular reason a law degree couldn't be gotten as an undergraduate degree with the same rigor applied before (LSAT) and after (Bar exam) except that schools make less money that way.

The second way can still be done in some States (including mine). That's "reading law" which is basically apprenticing with a lawyer for a certain amount of time and then being allowed to sit the Bar exam. I've known several people who've done this and practice law quite competently. We could fall back on this sort of system quite easily, although if I were to set it up as the primary method, I'd probably want an initial entry exam (say, you must get 80% on an LSAT) before you could start reading law so that it doesn't get abused and maybe a limit of an attorney only being able to apprentice a reader one at a time, three times in her life, and only once every five years. There's no reason this can't be done.

And yet, we're stuck with law schools.

And if we're stuck with them, there needs to be a metric to measure them by. The success of the students seems to be a pretty good standard.

Oh, and stop trying to turn a perceived disaster to your advantage.

Checking the Lock Down's Effect

The lock down model is confusing at this point:¹

Red= Should have been, Purple=Infected Prior, Green=New Infected

Prior infected should have increased for five days after lock down (avg incubation period) and then dropped off. I didn't make the drop off entirely linear, but had them drop off more steeply closer to the twelfth day when 97% of prior infected should have shown symptoms (days and percentages from here).  The new cases I put in start with 16 and add 16 more to the new cases each day which was an average number I came up with for the increase in new infections from 10 March onward. I could have used the median of 12, and think that might be the correct number to use, but went with 16 out of an abundance of caution. I did make the original line upward for prior infected add 12 more to the last number of newly infected per day because that was the average from 10 March before that date.

YES, before someone tells me that I don't know what I'm doing and should have used "the advanced confusion model of non-understandable mathometrics", I concede that there is no way I could make a perfect model. It's flawed, but close enough to further intelligent discussion.

And, here's the rub: the numbers end up about where I projected they would, but that feels an awful lot like an anomaly. I suspect that if the red and green lines continue to project upon their merged path they won't correspond with future data. However, that's at best an educated guess. I'll have to recheck the numbers in a few days.

Interestingly, the actual numbers didn't follow what they should have. They should have gone higher and then dropped back down. The first 5 days go up until the weekend and after the weekend it's at a higher level. Then it flattens. This could mean the post-weekend numbers are inflated and should really be lower (some cases should shift to Saturday and Sunday) and, if accurately measured Monday and Tuesday would have smaller numbers and reflect a slight growth for the weekdays. No matter whether that is true or not, it seems to indicate that the green line should be flatter, but that would mean the final result would not be consistent with the numbers at the end. Is the green line subject to the nigh unto mythical "exponential infection rate?" If so, numbers should continue to rise steeply into the next week. Again, something that needs further future data to develop.

The biggest flaw in all of this is the fact that increased testing has become available. This results in its own, unmeasurable bump in the numbers. I don't know how much to factor in for that in. For goodness sake, some places have been offering drive through testing and the experience where I'm at is that it's moved from impossible to get tests to available if needed. So, it almost goes without saying that there's a significant bump except I have no way of knowing what it is and factoring it in.

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¹  This was moved from the back end of the previous post because the two are about different things.

Are the VDH's Numbers Reliable?

ADDENDUM: Looking through news articles, it appears that VDH is adding numbers from senior care residences in the Richmond area (that were hiding them?). At least, that was the explanation for the sudden jump in the number of deaths (which I assume are being diagnosed post-death) and that means the (hidden?) infections occurred at an earlier time. Not sure that explains the entire boost, but it is the best explanation I can come up with. As I've said previously, this is not something fitting a conspiracy theory because there's nothing to conspire toward. The medical situation is already receiving priority over fundamental constitutional rights and an economy being seriously damaged. There's nothing to gain.

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I have long had a rule: Before you decide something was done in malice you have to overcome the presumption that it is the result of error, stupidity, or incompetency. It's a good rule and proves true far more often than not. And then there's what the VDH is doing with it's COVID-19 numbers:

Click on picture to get better view

 Mind you, as someone who's more than a little skeptical about all the things that are being done, the newer numbers tend to favor things as I conceive of them (linear growth, no real impact from "social distancing"). But, I'm frustrated by the fact that the numbers keep changing. I'm not including the numbers in the VDH's gray area where they say numbers are subject to change and I'd even understand number changes in the week behind. However, these changes keep happening further back. Today's change went back at least as far as 28 February 20. That's 41 days ago. Any changes in numbers needs an explanation on the page or somebody might think you're past the presumption above.

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Model Review moved to its own post.