17 November 2014

Ambush in Bartlette: Chapter 31

"Objection, your honor!”

Brad closed his eyes for a second, took a breath and reopened them. He was standing in front of the jury trying to deliver his opening statement and this was the sixth time Pinsky had interrupted him. None of the objections so far had come anywhere close to being sustained.

This time, instead of calling the attorneys over to argue the objection in hushed tones at the bench Judge Isom had the deputy and trooper acting as twin bailiffs escort the jury out of the courtroom.  Then he motioned for Pinsky to speak.

“Judge, the prosecutor used the phrase ‘I believe the evidence will show.’ This is clearly a personal endorsement of the evidence and as such violates my client’s due process rights under the Fifth and Fourteenth Amendments in that it asks the jury to base their observations and opinions on their trust of an official rather than the evidence itself.”

Brad stood from behind the prosecutor’s table and started to walk to the podium, but Judge Isom waved him back to his seat. “Mister Dollerby, if you have anything to say after I am through you will have an opportunity.”

The judge turned, giving Pinsky a stolid look. “Objection overruled. Furthermore, I find as a matter of fact and law that this objection was frivolous - that all the objections you have raised during the Commonwealth’s opening statement have ranged from frivolous to spurious - and that this Court does not believe these objections were made in good faith. As a remedy for this behavior, the Court is instructing you to hold all objections to the Commonwealth’s opening statements until both the Commonwealth and defense have concluded their opening statements.”

Pinsky was immediately back at the podium. “Judge, I object. The Virginia appellate courts are very clear in this. I must make timely objections and this means that I cannot wait until after opening or closing statements are made. I am required to object as the error occurs. Which means that I am required to object during the opening statement or I waive my objection.”

The judge held up a finger to quiet Pinsky. “During a trial, I have wide latitude to shape the law of the case. I’m shaping it. You will not object during opening statements and at this time I am going to extend the same ruling to closing statements. Objections are not meant to be a tactic, they are . . . “

“Judge!” Pinsky cut right across the judge. “I am required to make contemporaneous objections. Your order is contrary to Virginia law . . .”

“Your exception is noted.” The judge cut right back across Pinsky. “The law of this courtroom is that you will not use objections to interfere with statements or argument of other counsel. You will hold all your objections until after opening statements and you will do the same thing during closing arguments.”

“Mister Dollerby, please retake the podium and unless you have something further to add to this discussion we will bring the jury out and try to get through opening statements before we send the jury home for the day.”


Gil was ready to spit nails. He hated small town judges with small town god complexes. This was a capital case  - what did the idiot expect? Every capital murder trial was filled with objections. Everything that could possibly save the defendant's life on appeal had to be objected to so it could be argued on appeal. Otherwise the appellate courts would ignore it no matter how blatantly the prosecutor violated the law.

Sure, the Virginia Supreme Court kept saying that if it was impossible to object then the defense did not have to and the illegal and unconstitutional acts of the trial court and the prosecutor could be argued on appeal without an objection.  However, Gil had read too many opinions from appellate courts to trust that. The first thing appellate courts always did was try to find a way to wiggle out of their responsibilities and he was certain that this impossibility rule would generate a lot of  boilerplate paragraphs but actually be ignored in practice.

Another problem was that the local prosecutor was borderline incompetent. It was obvious this guy had never tried a serious case in his life and that he was not used to trying cases against anyone who knew law and procedure. He kept making all sorts of little mistakes. None of them were significant enough that Gil thought the particular mistake would be enough to get the case overturned on appeal. Nevertheless, the aggregate of hundreds of little mistakes could provide an overall violation of the defendant's due process rights that was impossible for the appellate courts to ignore.  Therefore, Gil had to object to preserve them all on the record.

Still, he held his tongue during the remainder of the prosecutor's opening statement. He wrote every error down and planned to spend at least an hour afterward painstakingly putting them all in the record. Yet, none of the errors were so bad that a trial judge would throw the case out or grant a mistrial based on them and Gil chose not to confront the judge's sense of godhood at that moment. It was more than likely that he and the judge would end up crossways later in the trial and Gil even thought there was a fair chance he would be held in contempt before everything was said and done; it would be far from the first time. For now, he decided to bide his time.


Jerome sat on a plastic chair set along the wall of the hallway outside the courtroom.  The judge excluded all the witnesses just before the opening statements began explaining that “We do this so that people say what they saw rather than being influenced by what others said.” Over the next four days the attorneys summoned various witnesses in and out of the courtroom. First, they worked their way through technical experts who were there to explain evidence having to do with guns, fingerprints, and explosions. Then investigators from the State Police and the FBI went in. Up through that point Jerome sat in the tiny library; he read, prayed, and spent several hours in small talk with other witnesses.

Starting yesterday, the state troopers brought witnesses from jail to testify and cleared out the room so they could store the orange clad men in it. Jerome found himself banished to the hallway.  Talking in anything more than a low whisper was discouraged because the sound carried into the courtroom so Jerome was working his way through The New Man.  Not a follower of the mystic path himself, he nevertheless tried to understand it and if you were looking to understand mysticism you went to Merton. Besides which, The New Man was the last book of substance Saint Berlinda had in its one bookshelf that Jerome had not yet read. If the trial went much longer he would be reduced to bringing his Vulgate and redoubling his efforts to read the Holy Book as his namesake had translated it.  Depending on how long the trial lasted, he might even get his Latin up to a level that Bishop Mannion would stop fussing at him about it.

There were yells in the courtroom and Jerome looked over at the doorway. Double doors blocked his view of anything and the words being yelled were garbled just enough to be outside his ability to understand.  One of the yellers was the witness, the former police chief of Yared, and the second was the defense attorney. Then the judge’s voice shouted them both down. Less than five minutes later the witness was escorted out looking like he was ready to chew nails.


Until yesterday the prosecutor was wasting the court’s time and trying to bore everyone in the courtroom to death. Then he started calling prisoners who were involved in the drug conspiracy. Gil objected, but the judge ruled that it all went toward a potential motive and the jury would be the ones to weigh if and how much the drug dealing was involved. It was just another in the long line of mistakes the judge had made so far.

The first couple prisoners were relatively minor and nothing they said had anything to do with Gil’s client. Then the prosecutor called Mark Poplin. Poplin was one of those guys defense attorneys love and Gil would never understand why prosecutors called them. Poplin would testify the moon was made of green cheese if he thought it would lessen his time in prison by a day.

Poplin described what he claimed to be the hierarchy of the local drug trade.  According to him, Jeff Sanger was the man running the protection side of the racket. From the tiny Investigation Section of the Bartlette County Sheriff’s Department, Sanger was responsible for the security of the drug transportation pipeline as it went through Northeastern Tennessee, Southwestern Virginia, and Southeastern Kentucky.

Poplin was a weasel and his story was implausible even before Gil cross examined him. There was no way a deputy from a small time sheriff’s department could run eight to ten counties in three different states. The cross examination took almost two hours and by the time Gil was finished the guy on the stand looked an utter buffoon. By the time Gil passed the old man in the witness chair back to the prosecutor every bit of his story was destroyed.  As the prosecutor returned to the podium to try to salvage his case the old man’s eyes remained fixed on Gil in a flat stare.

The prosecutor asked one question before Poplin started ranting about “rich New York Yankees” coming down and making life miserable for the “good Christian people of Bartlette County.”  The blatant bigotry caught Gil by surprise and it took him a few seconds to object. When he did he had to shout to be heard because the old man kept trying to talk over him. The judge shouted both of them down and had the bailiffs escort Poplin out of the courtroom. Then he sent the jury out as well.

Gil moved for a mistrial the moment the jury was gone. The prosecutor asked the judge to give a “curative instruction.” The judge - shock of shocks - sided with the prosecutor.  The jury was marched back in and the judge told them to disregard all of the statements Poplin made after the prosecutor’s last question. He went on to tell them that Gil was an attorney from Fairfax, Virginia and he was here because he was one of the few people in Virginia qualified to handle “this kind of case” and he had been appointed by the court. Having done this, the judge released the jury for the weekend.

Gil renewed his motion for a mistrial, but the judge must have had an appointment he needed to get to because he cut Gil off in mid-sentence, informing him that if he had any new arguments in favor of a mistrial he should write them down and submit them in the form of a written motion on Monday. When Gil objected the judge rolled his eyes, stood, and left the courtroom before the bailiff could finish yelling “All rise.”


Calling Mark Poplin to testify was a gamble and it went sideways right from the beginning. The only reason Brad put Poplin on the witness stand was to establish that Jeff Sanger was involved in the overall conspiracy and wanted to be the next sheriff.

Poplin had his own agenda.  Interviewed twice before the trial started, he only said that Jeff provided protection from the Sheriff's Department and that Jeff was worried that Bo would keep him from becoming sheriff. On the stand Poplin painted Jeff as the biggest bad guy in the local organization. Jeff supposedly kept everyone in Virginia, Tennessee, and Kentucky in line - including Poplin. Brad kept trying to get Poplin back on point, but every question led to another long winded explanation that Jeff was the big bad guy and Poplin was not.

When Brad handed the witness over to the defense attorney things went from bad to worse. At first Pinsky let his answers ramble on as he made the story bigger and more complicated. Poplin seemed determined not to answer any question with an "I don't know." After about forty-five minutes of this, the defense attorney ripped the testimony to shreds. After an hour of making Poplin look like a liar and a fool the defense attorney went back to his table and the judge called Brad to the podium to ask any questions he had to rebut the damage.

Brad walked to the podium slowly. He was only going to ask two questions. Was Jeff Sanger worried about the possible election of Bo and was Jeff involved in the drug conspiracy? He could see that Mark Poplin was pissed from his hour of arguing with Pinsky, but he hoped Poplin would be worn out enough to answer with a simple "Yes." He should have known better.

Brad only asked one question and Poplin ignored it. Instead, he pointed a finger at Pinsky and let rip. It was hard to make out everything that Poplin said because Pinsky got up and started yelling "Objection" over and over. Still, everyone heard Poplin call him "a rich Yankee from New York City" and accuse him of "coming down here where he isn't wanted to mess with people."

Judge Isom shouted them both down and had the witness and the jurors escorted from the room. Then he waved for Pinsky to proceed. Pinsky, of course, asked for a mistrial.

At first Brad thought Judge Isom was going to give it to him. The judge was known for his temper and today was no exception. If he had the power to hang someone for contempt of court Brad was pretty sure the judge would have strung Mark Poplin up directly in front of the courthouse to warn others against acting stupid in his courtroom. The judge was in a lather. He even interrupted Pinsky’s motion a couple times to add in his own little soliloquies. It looked bad.

Until Pinsky made a mistake. He started talking about how Poplin’s statements were meant to inflame the anti-Jewish sentiment of the jurors.  As Pinsky spoke at length about how labeling him a rich Yankee from New York was a derogatory way of besmirching him for his Jewish heritage, Judge Isom quieted down, sipped from his container of coffee, and stared at the lawyer. Pinsky seemed to take this as agreement, but Brad had been on the receiving end of that quiet stare before and knew better.

Brad even knew what the mistake was. As long as Pinsky had focused on the behavior of Poplin he was golden with the judge. However, Judge Isom did not like to hear the people of Bartlette County - his people - characterized as backward and telling the judge that his people were bigots would backfire every time. And that’s what the judge heard when Pinsky said the witness was appealing to the jurors’ anti-Jewish prejudices.

While Pinsky argued, Brad pulled out his phone and starting looking feverishly for the name of that skull cap Pinsky was wearing. Then he looked up some quick facts on Wikipedia. By the time the defense attorney finished his argument Brad was ready.

Brad pointed at Pinsky and told the judge that if the defense attorney truly believed that the people of Bartlette County were prejudiced against Jews then he would not have worn a large yamulke every single day of the trial. At the very least he would have moved to change the venue of the trial to the nearest location where the defense believed a jury could be seated that was enlightened enough to not care about the defense attorney’s faith. He pointed out that New York City had over eight million people and even the four members of the jury with only a high school diploma surely understood that not every single one of them was Jewish.  “After all, the first major Jewish population in the United States was in Charleston, not New York.”

The last comment got him a sharp look from the judge and Brad closed his argument pretty quickly. Judge Isom was far from an idiot and he knew that Brad was playing toward his proclivities. The last bit was a little too over the top.  Playing towards a judge’s proclivities was part of the game; having a judge feel like you were trying to manipulate him could turn into a disaster. Brad wrapped up by asking for a curative instruction.

Pinsky got up and argued some more, but he did not seem to realize he had lost the judge. Or maybe he did not care. In either case, he restated his same argument. The only new thing he said was that he could not have asked for a change of venue prior to trial because a change in venue could only be asked for because of bias against the defendant, not his attorney. He also made it real clear that the cap on his head was called a “kippah.” He said the name at least four times and even spelled it once. Brad was unsure what the difference between a yamulke and a kippah was, but whatever it was it was something Pinsky considered important.

In the end the judge told Pinsky that he did not believe the people of Bartlette would take the New York comment as a comment on the fact that he was Jewish. Nevertheless, he would give a corrective instruction.

The jury was brought back in and the judge waited until they were all seated before he addressed them.

“Ladies and gentleman of the jury, you are instructed to ignore the last answer given by the witness, Mark Poplin. It was not responsive to the question asked and was not proper behavior in the courtroom.  Furthermore, you are instructed that Mister Pinsky is from Fairfax, Virginia, not New York City, and that he is here because he is one of the few attorneys qualified for this type of case and he was asked to take this case by me.”

With that the judge released the jury for the weekend. Brad could have done without the judicial advertisement of Pinsky’s lawyering skills, but he figured he came out ahead. After all, the judge refused to declare a mistrial and the judge pointed out that Pinsky was from Fairfax. It was another thing that Pinsky seemed tone deaf about. People in Bartlette might have some theoretical distaste for New Yorkers, but they had a full on hate for Northern Virginianers and Fairfax was the most hated of them all. Pinsky would do better to worry about the fact the jurors now saw him as a Fairfaxer than that they knew he was Jewish.

28 October 2014

Drug Courts and The Establishment Clause

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Religious organizations put a lot of work into helping their fellow man. Any drug court out there would be insane to ignore the resources provided by groups such as Catholic Charities or The Salvation Army. Even groups which are not specifically attached to a religion use faith as a tool (AA/NA).  However, in the modern world, with its veto of one, it's difficult for a drug court to use any of these programs unless it wants to risk being sued out of existence.

The latest collateral fuss in this area has come out of the 9th Federal Circuit Court: Hazle v. Crofoot. A probationer was ordered into a drug treatment program which had religious elements and had his probation violated when he refused to participate.  The trial judge determined factual culpability before there was even a trial and a jury was brought in to determine damages. The jury awarded no damages and Hazle did not object while the jury was still there for the judge to send back to put in some sort of nominal damages. The appellate court saves the case for Hazle by working around that tactical choice and sends the case back because when liability is determined the jury has to award some damages. Then the State of California agreed to pay Hazle $1,925,000. The settlement by California appears to make little or no sense unless there is some floor beneath which an award cannot go (no indication of this that I saw) or the settlement was less than another trial would cost (using the first jury as a barometer, the likely outcome seeming to be a nominal award).

The general reaction to all of this is to make sure that both religious and secular programs are options. Of course, this leads to at least two problems. The first is that in areas with smaller populations and low economic viability secular options are not likely to be available and drug court programs cannot carve out an individualized program for one or two individuals. Second, if pre-existing programs are supported by a religious group or have a religious component then requiring the creation of competing secular programs is "making a law respecting an establishment of religion." It is the government using its powers economic, legislative, and/or judicial to pull people away from a religious organization to a government created or sanctioned competitor. Even a choice to walk away from outside programs involving religion and only use government employed counselors in government run programs would be "making a law respecting an establishment of religion" in that it punishes an external program because it is religious.  In theory, unless the drug court started out with both religious and secular options when it began it will be caught between an individual's free exercise guarantee and the prohibition against inhibiting a religion. 

The reality is that drug courts will muddle through using whatever programs are available.  If that means in order to be viable the drug court has to use the six religion-attached treatment programs (no secular ones being available) then the drug court will do so or it will shut down. After all, sending someone to jail - without offering any treatment program - is always going to be constitutional. If Hazle's probation officer had simply sent him to the probation board and thence to jail there would have been no problem. It was the attempt to help Hazle by sending him somewhere to get help that started the trouble.

NEXT: The Standards in Virginia

17 October 2014

Yes, I Play "Frisbee" Golf
No I Don't Smoke Pot

Over the last week or so, at least three people have pointed out the news story in which an officer asks why all "frisbee" golfers smoke pot and tries to use the driver's admission that he plays as a way to get the driver to let him search the car. Why have they pointed this out to me? Because I play disc golf (Frisbee is a registered trademark of Wham-O which does not make discs for disc golf). I've been playing two or three rounds a week for about a year now and I've progressed to the point that I can't really call myself a beginner anymore, but not to the point that I'm truly competent at the sport. Nevertheless, I've picked up most of the lingo and can talk a mean theoretical game.

Anyway, the idea that marijuana and disc golf are linked is not a new one. Here's a link to a Yahoo! Answers page discussing it five years ago. I've also listened to an interview with the president of the Professional Disc Golf Association in which he acknowledged this as part of the history of the sport before going on to talk about how the sport has evolved into the family friendly game it is today.

Personally, I've seen a good deal of variety on this. I've run into everyone from yuppies to hippies to guys with enough tattoos to look like their best job opportunity is as a bouncer to entire middle class families playing disc golf. Of the four courses I play most often three are too open or too busy for anyone to smoke in peace. The fourth is difficult enough that I've only found people serious about the sport on it. So, in the regular course of play I don't run into this.

However, I do travel out to other disc golf courses every so often when I get bored of the local courses and want to change things up a bit. One of these is outside a city in the mountains of North Carolina. Whenever I go there I make real sure that I am wearing a shirt and hat that identifies me as working with law enforcement.


Because the second time I went down there a guy glommed onto me halfway through the course who was flying high and bragging about how he always played disc golf high (except for the one time his "old lady" came with him).  I couldn't get away from the guy because the course has some serious hills and I am a short round guy who by that time was too worn out to move with any kind of speed.

Now, I quite like that course, but for obvious reasons a prosecutor from Virginia can't be hanging around in North Carolina with a guy who is bragging about being toasted. Consequently, every time I start to head that way I dig through my old t-shirts and pull out one that says something like "10th Annual Southern Cooperative Law Enforcement Training Conference" with the unmistakable law enforcement eagle across the back. Then I grab my "W&L Law" hat. You can't get much more obvious than that unless you wear a uniform and a badge.  Now, you say, that's got to be a bit of an overreaction. Except, at least two other times I've gone down there people have quickly put something they were smoking away.

So, I guess what I'm saying is that the officer's belief is far from groundless.   Based on my experience, I don't think the majority of disc golfers are potheads anymore, but they're out there.

On the other hand, most real players carry a bag that costs between $50 and $200. In that bag they carry anywhere from 20 to 40 discs which cost about $15 each. Personally, I can't see spending that kind of money and then wasting my time being toasted while I play.

30 September 2014

Talking to the Represented (Rule 4.2)

I'm sure this happens to other lawyers as well, but I think it's a hazard run across by prosecutors more than most. For some reason, defendants think that if they can just talk to the prosecutor and explain their circumstances they can make the situation better. Most often this occurs as you are walking down the hall and the defendant is waiting in ambush. "Mr. Lammers can I talk to you a minute?" Then come the times that you are out at the store and someone chases you down as you are trying to buy some socks. "Hey, do you work in the prosecutor's office? Let me tell you about my case." Then there's the lady on the phone who somehow talks her way past the receptionist and talks to you about the case for five minutes before you realize she isn't the witness you were expecting a call from - she's the defendant. And these are only the most common ways that defendants have approached me.

Generally, a prosecutor tries to avoid speaking to a represented defendant. Not that this stops the defendants. On more than one occasion I've had to walk away from people insistent on talking with me.  I've also had to hang up on a couple people. Some people just will not accept the fact that a prosecutor cannot talk to them without running it past their attorney first.

Of course, prosecutors also face a unique problem in the courtroom. A high percentage of Pitcairn County's misdemeanor crime originates in Lou's Trailer Park. Today's victim out of Lou's Trailer Park is quite often tomorrow's defendant out of Lou's Trailer Park. She already has an attorney assigned for tomorrow's case. Can the prosecutor talk to her about today's case?

Communications with a represented person is covered both by ABA Model Ethics Rule 4.2 and Virginia Ethics Rule 4.2 (the struck through section is in the ABA's version, but not Virginia's):
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
The key phrase to zero in on in this situation is "in this matter."  This fairly clearly delineates when one can and cannot talk to a person.  However, if it is not clear enough both the ABA Model and Virginia's actual clarify in comment 4 (I provide Virginia's more streamlined version):
[4] This Rule does not prohibit communication with a represented person . . . concerning matters outside the representation. For example, the existence of a controversy between an organization and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with the other party is permitted to do so.
So, as long as the case for the victim today is not entangled with the case in which she is the defendant tomorrow the prosecutor can talk to her, but only about the case in which she is the victim.

An interesting variance between the Virginia rule and the ABA model is the striking of the judicial release valve by Virginia.  Virginia does not allow contact with a represented person solely because a court orders it. It struck the language from the model rule and declined to adopt comment 6:
[6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. 
Sorry about the loud disclaimers, but as certain as the sun will rise tomorrow if I don't do it someone will ding me in the comments: "You're wrong about comment 6. How can you possibly quote it? You need to go back and reread the rule because that's not in it. Geez. More proof that prosecutors are evil and can't read."

The reason this difference is important is another situation often run into in misdemeanor court. Defendant has hired an attorney for a misdemeanor he was never going to get jail time on. The attorney has not appeared in court fourteen times because she's off doing slightly more important things like trying murder trials or arguing an appeal or giving birth to her child or . . . The judge wants to clear this piddly case from his docket.  He turns to you, "Mr. Lammers talk to Mr. Smith and see if we can't settle this today." Under the ABA's version the prosecutor has been ordered to talk to a represented client. Under Virginia's version he is still forbidden ethically from doing so.

18 September 2014


I'd heard about this a little before, but I really had not paid attention until a buddy pointed me to the full on tactical raid that took place at a business. The business owner is playing a computer game online when fully kitted out SWAT burst in, put him on the ground, and cuff him. Here's the video:

I admit, when I first watched this I was dubious. To begin with, the guy realized he was being SWATted before they got to the room he was in. As well, it takes time for officers to get kitted out like that. I figured that first on the scene units would be officers in regular uniforms doing a preliminary sweep to determine where the threat was and evacuate the building.  However, I was wrong. There are all sorts of news reports online confirming this occurrence. Apparently, someone called and said there was an ongoing attack / hostage situation. I don't know how the SWAT team was first through the door. Maybe they were training that day and just happened to be available.

Anyway, as I looked a little deeper into this, it became obvious that the reason the guy playing the game knew he was being SWATted was that this thing is happening all the time to people who spend a lot of time filming themselves playing video games online. With the rise of "internet celebrities" there has also arisen an internet trolling culture which thinks it is hilarious to call the police and claim that there is a major violent crime going on at house and/or workplace of the person. Then the caller sits back and watches as the internet celebrity (most of whom spend humungous amounts of time filming themselves playing computer games) is rousted by the police on live videocam.

Most of the time it's not quite as drastic as an actual SWAT team coming through the front door.  In fact, most of the time police seem to respond to the scene, investigate, get confused as the guy tells them that he spends all his time online and someone is SWATting him, and leave after they are satisfied that no one is actually in danger. Here are a couple videos of that scenario (cursing):

If you go to Youtube you can find dozens of these videos.

This is very dangerous. Consider that most of these people are playing games which involve violent content. Most of them will also be wearing headphones so that feedback does not come through their microphones. There is significant potential here for an officer to walk up to a room and hear some sort of in game trash talking or just plain old or cooperative in game discussion. "OK, I'm going to shoot these three. You take care of the other two on the left side." The officer enters the room ready for a firefight, the surprised gamer makes a sudden move and there's an injured or dead innocent.

Of course, by the nature of the beast it is often quite difficult to catch and prosecute the person who does this sort of thing. A fifteen year old in Utah using a disposable phone or a number masking site to so this to someone in Maryland could be almost in impossible for a local police department detective to catch. It's really more of a federal issue, but individual cases would probably be too small for federal response.

09 September 2014

18.2-99: Stealing Coal or Trees

This is an interesting statute which I have never seen used:
§ 18.2-99: Things which savor of the realty, and are at the time they are taken part of the freehold, whether they be of the substance or produce thereof, or affixed thereto, shall be deemed goods and chattels of which larceny may be committed, although there be no interval between the severing and taking away.
"Savor to the realty" (more often stated as savor of the realty) is a phrase which American jurisprudence carried over from British. Blackstone discusses "incorporeal hereditaments which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same ; as, rents, estovers, commons, and the like."  Commentaries, Book II: Freehold Estates of Inheritance.  This is an old usage of "savor" which basically means something which can only be obtained through a particular real property.  Blackstone is talking about the incorporeal things which can be reached through a particular real property; 18.2-99 is addressing the corporeal.

The language "of the substance or produce thereof, or affixed thereto" lays out its parameters. If an item is "of the substance" it would be an unliving resource found within the land. If a plot of land has a unique type of granite and someone comes onto the property and takes the granite that person is in violation of this statute. "Produce thereof" would be things such as trees or crops. In fact, the only case I can find addressing this statute is an unpublished opinion about timber harvested by a tenant who had no right to it. White v. Commonwealth (U), No. 0540-13-4 (2104)(decided on grounds not dealing with this statute). "Affixed thereto" would cover things such as houses, outhouses, tombstones, &cetera which are intended to be permanent when attached to the property. Thus, when a kid comes along and steals a tombstone he has violated this statute. It's harder to steal a permanently attached house although a case could be made that this is the statute which allows the prosecution of people stealing copper wires, pipes, and roofing from a house fixed to realty.

The language "although there be no interval between the severing and taking away" seems to be surplussage. When the item was severed from the property would have no relevance upon its taking. In fact, if the severing and taking happen simultaneously (or nearly so) it makes the case easier as causation and intent become much clearer - the thief cannot argue he took down those trees to improve his view of Witch Mountain and only sold the logs when it became obvious the landowner wasn't going to remove them and they became a hazard sheltering snakes and raccoons.

01 September 2014

Disparate Impact, or
Who Needs an Officer in Adequate Shape?

The federal government is suing the Pennsylvania State Police because the PSP does not hire enough women.  Period. Not because the PSP is discriminating against women, but because the physical fitness test required to be considered as a possible trooper has more female failures than it does males and therefore should be eliminated because it has a disparate impact.

When I first read that, I pictured the test as being a 5 mile ruck march with 100 pound rucksacks followed by a mandatory 75 pushups followed by a two mile run that had to be done under 14 minutes - you know, the kind of thing you have to be raised in Kansas by Ma and Pa Kent to pass. But no, the test is actually rather easy:
300 meter run in 1 minute and 17 seconds
13 push-ups
14-inch vertical leap
1.5 miles in 17 minutes and 48 seconds
Anyone considering a career in law enforcement anywhere should be able to pass that test.  Male, Female, Gorn, Anyone. In fact, 98% of males do. However, only 72% of female applicants pass the physical fitness test. This is unacceptable to the federal government.

The federal government filed suit in July, claiming the PFT "is not job-related for the entry-level trooper position." You heard it here first folks, a bare minimum of physical capabilities is not needed to go out and face down drunk idiots who want to fight when they are pulled over for DUI. Somebody in a federal office somewhere isn't thinking this through.

As of yet, the PSP isn't backing down.  The head of the PSP stood his ground, pointing out, "This is not an impossible task.  We're not looking for Olympic athletes."  Good for the PSP. I hope it holds its ground and backs the Justice Department down.

Unfortunately, the federal government has infinitely deep pockets.  The Justice Department will probably be able to force its will on the PSP, which I suspect has limited resources (and better uses for them elsewhere). In the end, the most likely result is that the Justice Department will enforce its 80% rule on the PSP. The 80% rule is an arbitrary number chosen by some committee in California in 1971 and it goes something like this: If you hire 100 X's (unprotected class) then you must hire 80 Y's (protected class).  I think this rule may have run into some trouble in the courts and the federal filing also pushes a random selection standard which basically says: If this PFT did not exist and a random 100 people applied there would have been Y more of the protected class hired. Nevertheless, the goal, whether stated or not, will be 80%.

Currently, the number of females hired for every 100 males is about 73. If forced to change the standard the best way to do it would be to maintain the current standard for females and raise the standard for males until the number of males passing dropped and the 80% standard was reached.  There are two problems with this. First, it will emphasize that females accepted into the PSP are inferior. Second, it may open the PSP to reverse discrimination lawsuits because, unlike the current situation, this would be a clear and purposefully chosen discriminatory act.

So, where does that leave the PSP? If the Justice Department gets its way, the PSP will most likely just have to drop the PFT. And then the troopers going into the field - both male and female - will be degraded. Sure, the top troopers will still be superior, but the bottom 10% or so will drop even further in quality and the majority of those troopers will be female - forever.

The Justice Department isn't thinking this through. This isn't a case wherein affirmative action will eventually cause equalization in abilities. If German-American Catholics (GAC) are undereducated and forced to take lower paying jobs, the government forcing the acceptance of GAC's forces lower quality students and workers into positions they are less qualified for, but by the second or third generation GAC's should be satisfactorily improved in their qualifications. However, if GAC's are congenitally born with only one working lung no matter how many generations of GAC's you require the U.S. Olympic sprinting team to take the GAC's will not improve into that role.  The federal government does not seem able to make that distinction.

14 August 2014

So You're Subpoenaed to Come to Court; Do You Have to?

I got asked an interesting question today. In Virginia, when is a subpoena ad testificandum (a summons to come to court and testify) served too close to the trial date to be valid?

I'll admit, I thought it was either 10 or 14 days. I also thought it was a law more honored in its breach. Almost inevitably, when a trial date comes rolling around one side or the other (often both) issue a flurry of last minute subpoenas. However, it turns out my understanding was wrong. There is no time when it is too late to subpoena a person to testify in court.

If you look at the statutes, there are really only two which are pertinent in criminal cases. § 19.2-267 basically states that the civil rules for summoning people to court apply in criminal cases.  The pertinent section of the civil statutes is § 8.01-407(A). In pertinent part, it states:
The clerk shall not impose any time restrictions limiting the right to properly request a summons up to and including the date of the proceeding.
. . . .
When any subpoena is served less than five calendar days before appearance is required, the court may, after considering all of the circumstances, refuse to enforce the subpoena for lack of adequate notice.
So, whether or not someone who is served three hours before the trial starts will be punished when he goes to work instead of going to court is entirely at the discretion of the court.

That's a bad rule.

To begin with, it leaves people at the mercy of the whims of the judge. In general, I would expect judges to look seriously at the circumstances and lean heavily against punishing people who don't come to court after having been served with a last second subpoena. However, there are going to be some judges who just won't forgive the fact that a subpoenaed witness did not come to court no matter how belated service was or how dire the consequences to the witness' personal life might be.

A second thing to consider here is the fact that the later the subpoena is served the less likely this statute is to provide a safe harbor. If the witness is served 5 days before and knows the trial date is the same day as his father's funeral, the witness can go to the judge and explain his situation. If the subpoena is served at 6 p.m. the day before trial the witness does not have this opportunity. Then the witness has to make the decision entirely on his own whether to obey the subpoena or go to the funeral and later face the ire of a judge who had to delay a jury trial for lack of a subpoenaed witness.

Third, the statute is meaningless. Whether the subpoena was served three days before the trial or three hundred, the judge always has the power to refuse to enforce a subpoena. They are enforced by a judge finding someone in contempt and the judge can always decline to find someone in contempt.


The statute needs some language added which would make this less discretionary. I would propose something along these lines:

A subpoena shall be without force unless it is served in a timely manner. In order for a subpoena to be timely served it must be served in such time that the witness has the opportunity to appear before the court on a day prior to the date on the face of the subpoena and explain why he cannot appear as subpoenaed. A subpoena served at any time later than two business days before the date on the subpoena shall always be untimely.

01 August 2014

Virginia Theft Project: Stealing Papers - Check Theft etc.

I run into section 18.2-98 most often as a mischarge. The thief steals a box of checks and is charged with larceny under this section.  While the theft is a petit larceny, charging under this section is an error because the checks have no value on their face.

Here's the statute:
§ 18.2-98. Larceny of bank notes, checks, etc., or any book of accounts.  

If any person steal any bank note, check, or other writing or paper of value, whether the same represents money and passes as currency, or otherwise, or any book of accounts, for or concerning money or goods due or to be delivered, he shall be deemed guilty of larceny thereof, and may be charged for such larceny under § 18.2-95 or 18.2-96, and if convicted shall receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The provisions of this section shall be construed to embrace all bank notes and papers of value representing money and passing as currency, whether the same be the issue of this Commonwealth or any other state, or of the United States, or of any corporation, and shall include all other papers of value, of whatever description. In a prosecution under this section, the money due on or secured by the writing, paper or book, and remaining unsatisfied, or which in any event might be collected thereon, or the value of the property or money affected thereby, shall be deemed to be the value of the article stolen.
Broadly, this covers everything with a written value on its face which is meant to represent money. Most often, this is charged regarding checks written to individuals with the values already printed on the check. See Morton v. Commonwealth, 225 Va. 282 (1983)(pension check), Kocher v. Commonwealth, 2009 VaApp No. 0057-08-2 (U)(settlement check), and Hubbard v. Commonwealth, 1994 VaApp No. 2111-92-3 (U)(payroll checks).  However, it can also include other papers which represent a value. See Vaugn v. Commonwealth, 10 Gratt. 758 (1853)(bond paper representing a debt).

The purpose of this statute is to overcome the common law rule that bonds, checks, and their like were not things of value themselves (at least not of any more value than the paper they were written on). These items were each a "chose in action" giving the holder the right to enforce the value on its face against the guarantor. This was not viewed as a tangible property of value. The reasoning appears to be that a chose in action represents potential value, not actual value. In other words, anyone can write 5 million dollars on a check, but that does not mean that an attempt to enforce it will result in the holder collecting 5 million dollars. If all the guarantor has is $50 to his name then the actual value of the chose in action tops out at $50.  See Adams v. Commonwealth, 23 Gratt. 949 (1873) and Whalen v. Commonwealth, 90 Va. 544 (1894).  Of course, the reality is that in the overwhelming majority of cases the paper is worth the value on its face and the common law rule created significant difficulties in prosecuting the thief; hence the statute supplanting the common law rule.

The last sentence of the statute could use clarification.  Like many older statutes, this one says things in a roundabout way which attempts to cover every possibility, but actually makes things more confusing. A simple "The value of the paper shall be the amount the paper states its value to be if the paper has not been previously satisfied" would be much clearer. In any event as long as the paper is still in the wild when it is stolen the prosecutor must present proof both of the amount on the front of the paper and the fact that it had not been previously exchanged for value.

Proving of the amount on the face of the paper is usually fairly simple. The reason for stealing the check is to cash it and the bank has it (or a copy of it - generally banks aren't required to keep checks any more). All a prosecutor has to do is introduce the check. Failing that, the value can be proven through the testimony of its recipient: "My social security check was for $632.15."  It could also be proven through the testimony of the writer: "The pay check I mailed to Mr. Smith was written for $427.09."

Proving that the paper had not been previously exchanged for value has at least two common methods of proof.  The first is to have the legal holder of the paper testify that she had not cashed it in. The second is to show that the thief exchanged the paper for value. This second has some possible glitches because of the ability to cash checks at places remote from the the bank which holds the actual funds. If a check is cashed at a grocery store that store is unlikely to call and see if the check had previously cashed. However, even in this sort of case, eventually the check must go to its home bank and that would establish whether it had been previously cashed (if it has been previously cashed that would lead to different charges).

29 July 2014

Punishing You Now and in the Hereafter: Capital +

I knew punishments were steeper in the past, but this is a new one to me:
Any person who shall hereafter be guilty of stealing, or selling, any free person as a slave, knowing the person so sold to be free, and shall be thereof lawfully convicted, the person so convicted, shall suffer death without benefit of clergy.
That's a Virginia statute from 1792 and it puts our modern day capital punishment to shame. We're going to kill you and not give you an opportunity to redeem your soul.

On the other hand, it could just be a way of saying you can't get out of a death sentence by being literate.

23 July 2014

16 July 2014

Virginia Theft Project: Stealing Critters

Generally, in order to convict someone of a grand larceny (felony theft) either the value of the item must be shown to be at least $200 or there must have been two prior larceny convictions.  However, there are exceptions and one of the more interesting is the animal exception.
§ 18.2-97. Larceny of certain animals and poultry.
 Any person who shall be guilty of the larceny of a dog, horse, pony, mule, cow, steer, bull or calf shall be guilty of a Class 5 felony [10 year max]; and any person who shall be guilty of the larceny of any poultry of the value of $5 dollars or more, but of the value of less than $200, or of a sheep, lamb, swine, or goat, of the value of less than $200, shall be guilty of a Class 6 felony [5 year max].
As you might imagine, the courts in Virginia aren't exactly choked with people charged under this section. In fact, most of the animals covered by the class 5 felony would probably also be worth more than $200 and thus be charged under the felony by value statute  [20 year max]. However, this is not true for dogs. Consequently, when you see someone charged under this statute it is almost always because they have taken someone else's dog.

You're thinking to yourself, "Surely, people don't get charged under this statute for stealing Spot?" I'm here to tell you they do. It's not the most common charge in the world, but I've seen 4 or 5 people in court facing this charge and about the same number with a conviction for it on their record.

To be fair, there are valid policy reasons for felonizing dog theft in certain circumstances. If the dog is a tool or a profit center its inclusion in this statute makes sense. In other words hunting dogs, herding dogs, handicap assistance dogs, and Miriam Sherringham Terrentia Regina (a champion purebred shih tzu whose puppies sell for at least $1,000) all fit under the purpose of this statute. Rover, while he fits under the language of this statute, does not fit under its purpose. So, of course, the cases we see in court are almost all because someone stole Rover.

11 July 2014

Top Five New Virginia Criminal Laws

It's that time of year again. The Virginia General Assembly has gifted us with a new set of laws and changes in laws. This year they didn't change as much as they usually do (maybe they were preoccupied with some other issue), but there were some important changes. Here are the top five I spotted (in no particular order).

(A) § 18.2-386.2 - Revenge Porn Statute - If someone maliciously, with intent to harass, publishes nude or semi-nude pictures or video of another without their permission it is a class 1 misdemeanor.

COMMENT: This can be applied to anyone, but the best use that I see for this is for dealing with minors. There seem to be lots of girls sending pics of themselves to the high school love of their lives. The boy then sends the pics to all his buddies or puts it up online. Then the girl's parents want the 16 year old boy castrated and buried under the prison. Before the passage of this statute the only thing we could charge was the felony distribution of child porn. This wasn't a good fit to the situation, would tar the minor with a sexual felony that would follow him for life, and if he was guilty so was the girl. The new statute is a far better fit for the situation.

(B) §§ 17.1-275.12, 18.2-67.5:1, 18.2-346, 18.2-348, 18.2-356, 18.2-359, 18.2-361, 18.2-368, 18.2-370, 18.2-370.1, 18.2-371, and 18.2-374.3 – Various sexual crimes with minors amended so they add to sexual intercourse the acts of “anal intercourse, cunnilingus, fellatio, or anilingus.”

COMMENT: Previously, the first thing that a defense attorney went to was the Bill Clinton defense: "Yeahh, he did XXX, but it wasn't sex."

(C) No more zero tolerance policies at schools for firearms (§ 22.1-277.07 / two bills) and no more zero tolerance for drugs (§ 22.1-277.08 / three bills).

COMMENT: Yes, I know this isn't technically a criminal statute, but it is bound to have collateral affects.

(D) §§ 54.1-3401, 54.1-3443, & 54.1-3456 – After 30 days notice and a hearing, the Department of Forensic Science can declare a substance a schedule I or II drug as a controlled substance analog for 18 months. Thereafter, if the General Assembly has not acted, the substance is descheduled. A controlled substance analog is prosecuted as a schedule I or II drug.

COMMENT: This is a reaction to the synthetic drug problem. The formulas keep changing and a once yearly change of which chemicals were illegal fell hopelessly behind. NOTE that all synthetics are now schedule I, including those which were previously covered by the now defunct cannabinoid statute.

(E) New Moped Laws

§§ 46.2-600, 46.2-613, & 46.2-715 - Moped must have have title, registration and rear license plate.

§ 46.2-914 - Moped driver must have a government issued photo ID (not driver's license).

§ 46.2-915.2 - Moped driver and passenger must wear helmet or goggles or the moped must have a windshield.

COMMENT: Yes, I know that these laws were actually put in place last year, but law enforcement was forbidden (by the bill) from enforcing the statutes until this year.

29 June 2014

The Mob is Not in Communication with the Church

Anyone who has watched any kind of movie about the mafia has seen its members being portrayed as Catholic. There's the occasional Jewish guy, ala Meyer Lansky, and maybe a greedy WASP banker or two, but everyone else is Catholic. However, Pope Francis ain't having it:
"Those who in their lives follow this path of evil, as mafiosi do, are not in communion with God. They are excommunicated."
Now, before everybody goes as nuts as the various newspapers did, that's not a mass excommunication, it's just a recognition of a status situation. If you are actively involved on evil you are not engaged in behavior conducive to a relationship with a Church working to effect God's will on Earth. 

The Pope was visiting a family in a heavily mafia influenced area which had lost a child and grandfather in a shooting. His comments were off script, but consistent with his prior indications in this area. He's not the originator of this position . JPII set out the same position back in the 90's.

This is all consistent with the general theme that seems to be developing in Francis' papacy.   There is a deep and abiding concern for the poor and oppressed, a clear assignment of error and sin to those who exist, or would do so, in a manner parasitical upon those people, and an unwillingness to merely allow wrongs in this area to proceed because to do so would be easier. Hence the last weekend's refutation of both the legalization of drugs and the mafia.

Perhaps the most interesting speculation concerning the Pope's words has been that this was less a message to members of the mafia and more a message to local priests and bishops. The thought is that priests out in the community have at the very least turned a blind eye to the activities of mafia members. The theory is that the Pope is pushing them to take more proactive stands against the mafia in their communities.

That puts priests in a difficult position. It puts their role as Converter, welcoming people into the arms of Christ in the belief and hope that all can be saved, in conflict with their role as Steward, charged with leading believers in the proper direction toward God and setting limits beyond which one cannot travel and remain in the fold. The latter is the more difficult role and the one to which Francis is pushing them. 

23 June 2014

The Pope on Drugs

Last weekend started with the Pope stating that legalizing drugs doesn't solve the problem.
Let me state this in the clearest terms possible: the problem of drug use is not solved with drugs! Drug addiction is an evil, and with evil there can be no yielding or compromise. To think that harm can be reduced by permitting drug addicts to use narcotics in no way resolves the problem. Attempts, however limited, to legalize so-called “recreational drugs”, are not only highly questionable from a legislative standpoint, but they fail to produce the desired effects. Substitute drugs are not an adequate therapy but rather a veiled means of surrendering to the phenomenon. Here I would reaffirm what I have stated on another occasion: No to every type of drug use. It is as simple as that. No to any kind of drug use. But to say this “no”, one has to say “yes” to life, “yes” to love, “yes” to others, “yes” to education, “yes” to greater job opportunities. If we say “yes” to all these things, there will be no room for illicit drugs, for alcohol abuse, for other forms of addiction.
Not only is he rejecting legalization, he takes his condemnation a step further and rejects substituting drugs such as methadone and buprenorphine.  This is man who has made very clear his stance that we must help drug addicts and he does not see how either of these things do that. His belief that a total solution can be engineered through better conditions is a bit more than an imperfect world is likely to produce in the face of free will and temptation (whether legal or not). However, his job isn't to work out all the solutions, but to exhort us to make the world more Godly.  The fact that we may not get there does not forgive us the effort.

With the exception of the the statement that the provision and growth of the good can, by itself, squeeze out the evil of drug use in its entirety, I find this to be a distillation of my personal beliefs about drugs. Legalization is unlikely to do the user much good. It will just switch the dealer from some guy on a corner to some guy behind a 7-11 counter. And I doubt that any cocaine producing Columbian cartel could ever match the predatory nature and capabilities of Big Pharma. After all, the Medellin cartel can't run ads during the super bowl or deliver its product to every single grocery store, pharmacy, and convenience store in America - Proctor & Gamble (pepto bismo) and Bayer (aspirin) already do. Anyone who believes addiction will decline in such an atmosphere is either naive or choosing to turn a blind eye to reality.

10 June 2014

Police Baiting and Passive Resistance

YouTube has a feature that suggests videos you might want to watch. In between the disc golf videos and the movie trailers and comedy skits, it tends to show me a fair number of videos of police activity. In general, I find these break down into five categories: (1) Abuse, (2) Mistakes, (3) Misunderstood Activity, (4) Humorous, & (5) Baiters.  I'm usually interested in seeing videos in the first three categories and often enough the fourth.  Unfortunately, at least in my video feed, the fifth category seems to be supplanting the others.

Baiters are the people who go around purposefully engaging in activity meant to arouse police suspicion and then act shocked SHOCKED!!! that police accost them. These are the guys who create houses that mimic the energy and heat production of a grow house, or walk through the middle of town with a pistol strapped to their hip and a rifle across their back, or violate a minor law where they know it won't be ignored (often trespassing or a minor traffic infraction). Of course, baiters set it up so that the whole thing is captured on video with the purpose of putting the video online (sometimes they even use the police car video gotten through FOIA requests).

It's a modern day way of counting coup. The baiter usually acts obnoxious and often engages in some sort of passive resistance. The objective is to make the police officer overreact just enough to make him or her look ridiculous. One of the great hypocrisies of this kind of behavior is that it assumes the police are the bad guys, but at the same time relies on their restraint. They want the officer to yell or shove or throw them up against the car and cuff them.  They assume the officer will remain professional enough that she won't beat the crud out of them with her asp, smash the camera phone, and "accidentally" erase the video in her car.

"I'm Not Resisting!"

 One of the most annoying parts of these videos comes when the baiter manages to cause a situation where he can engage in passive resistance. Typically this occurs when the officer has gotten to the point that she is issuing commands to the baiter or actually putting hands on him.  The  baiter will make statements diametrically opposed to reality such as "I'm not refusing to comply" when an officer has ordered him several times to leave a property he's trespassing on (most often as part a protest). Meanwhile, the baiter just stands there, not moving an inch. Even more common is the yell of "I'm not resisting!" as he jams his leg up under the steering wheel so he can't be pulled from the car or tenses his arms to his side so he can't be handcuffed.  I used to look at these and just chuckle a bit. However, after the first fifty or so, it started to get old.  It especially got old as it became clear that the first few people doing this were spawning copycats.

Depending on the flavor of baiter, the genesis of the copycats varies. Open carry baiters are most likely encouraged to act by the various Second Amendment listserves or electronic bulletin boards. Various crusaders for all sorts of (generally leftish) protests find instruction and encouragement all over the internet. Both these groups are cause oriented and their engagement with the police is understandable - if not excusable per se.

The ones that truly bother me are the traffic baiters. They don't seem to have any purpose but to count coup. They are neither defending a right nor trying to further a cause. They're just messing with the cops. Even more disturbing is that there is now an effort in Virginia to recruit people to do this. I've seen it on various community electronic bulletin boards and know there is a web page dedicated to it (no, I won't provide a link).  This is about causing trouble for trouble's sake.

30 May 2014

Driver License Silliness

Ever wonder where some of the out-and-out weird ideas that people bring into court come from?

Go watch this video on YouTube about how none of us are required to have drivers' licenses because we're "travelers" not "drivers."  It even gets more fun if you read through the comments:
This video also served as a tool to show how many people will jump to citing codes, statues, laws, etc. To say this video is wrong. This indicates as we have expected. Most Americans allow others to ASSUME authority over them. Those that write the codes, statutes, laws etc. have come to understand that the slaves will accept anything as long as it's called a "code", "statute", "law", "ordinance" .. etc.
Hmmm . . . not sure I like where this train of thought logically leads.  If laws passed by a legislature aren't valid because they are imposed, I'm not sure what could qualify as a rule we must follow. After all, the people who wrote the constitution weren't even an elected legislature. And if we go further back to things that the Constitution was based on, like the Great Charter, the signatories were nobles who weren't even appointed by people who had been elected. And if you assume that the Magna Carta was not valid then none of us freemen have any individual right not to be arbitrarily imposed upon by our leaders. We're no better than serfs and should be so by this line of reasoning.

Moving on . . .

I can't speak for other States but in Virginia a driver's license is specifically defined:
§ 46.2-100. Definitions.
"Driver's license" means any license, including a commercial driver's license as defined in the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.), issued under the laws of the Commonwealth authorizing the operation of a motor vehicle
And the penalty for not getting a license is also specifically defined:
§ 46.2-300. Driving without license prohibited; penalties.
No person, except those expressly exempted in §§ 46.2-303 through 46.2-308, shall drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver's license, as provided in this article, satisfactorily passed the examination required by § 46.2-325, and obtained a driver's license, nor unless the license is valid.
A violation of this section is a Class 2 misdemeanor. A second or subsequent violation of this section is a Class 1 misdemeanor.
Upon conviction under this section, the court may suspend the person's privilege to drive for a period not to exceed 90 days.
Of course, you could still try the old "I was a traveler, not a driver" line, but I'm pretty sure that the judge is going to fall back on the normal, accepted definition of "drive":
Transitive Verb
4 a : to direct the motions and course of (a draft animal)
b : to operate the mechanism and controls and direct the course of (as a vehicle) 
Intransitive Verb
2 a : to operate a vehicle
b : to have oneself carried in a vehicle
Pretty sure that a judge is going to apply all of three seconds of thought before he decides that operating and directing a vehicle is driving.

21 May 2014

Larceny, Value, and Inchohate Offenses

In the vast majority of cases, a grand larceny in Virginia is the theft of an item worth more than $199.99. There is no doubt that the value must be proven to prove the felony (otherwise it's a petit larceny).  However, what happens if the charge is an incohate offense such as attempt to commit grand larceny or conspiracy to commit grand larceny?

Picture the following scenario: A banker has a foot tall gold penny sitting on his desk. Defendant01 and Defendant02 see the gold penny and decide to steal it.  The next day they run in the doors with a two wheel truck, shove  the penny into a box on the two wheel truck, and run back out the door. When they duck into an empty alleyway two blocks down they eagerly pull the penny out and realize that it is a giant piece of chocolate covered with golden foil. It even has a price tag on the bottom stating a retail price of $12.95.  When the police catch them five minutes later they admit that they thought it was worth thousands.

Did they attempt a grand larceny? Did they conspire to commit a grand larceny?

Of course, the most likely thing to happen here is that the Defendants would be charged with petit larceny. But still their intent was to commit a felony.

In Virginia an attempt requires a direct ineffectual act meant to be in furtherance of the intended crime. See Cuffee v. Commonwealth, 61 Va App 353 (2013).  There isn't a much more direct ineffectual act toward grand larceny than actually committing a mere petit larceny because you mistook the value of the item you stole..

In Virginia a conspiracy only requires an agreement between two or more people to commit a crime. It does not require any act in furtherance.  See Chambliss v. Commonwealth, 62 Va App 459 (2013).  The Defendants in our scenario agreed to act together to steal a foot tall, solid gold penny which would have been worth more than $200 (and the defendants clearly believed it would be worth far more).

The only case law I found near this question was an unpublished opinion which assumed - without addressing this question at all - that in an attempted grand larceny a $200 value must be proven before it moves on to rule that it wasn't. Curry v. Commonwealth, 2000 VaApp No. 0722-99-1 (U).

While I think there are strong arguments for allowing the attempt and conspiracy charges based on intent to take something worth at least $200 rather than actual value of the item taken, in my opinion better reasoning requires the actual value of the item to be proven as $200 or more.

The basic reason for this relies on an analysis of Virginia code 18.2-95, which establishes the value amount for grand larceny, and Virginia Code 18.2-23(B), which establishes the punishment for conspiring to commit grand larceny. 18.2-95 states in pertinent part:
Any person who . . . (ii) commits simple larceny . . . of goods and chattels of the value of $200 or more . . . shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.
You'll notice that there's no intent in the statute. That's because a defendant does not have to intend to steal something worth $200 in order to be convicted of grand larceny. She just has to steal something worth more than $200. The intent in larceny is the intent to deprive the owner of his chattels permanently. In other words, the general crime is larceny and the $200 amount found in 18.2-95 is an aggravating punishment element that requires no intent in and of itself.

18.2-23(B) has much the same limitations.
If any person shall conspire . . . to commit larceny . . . where the aggregate value of the goods or merchandise involved is more than $200, he is guilty of a felony punishable by confinement in a state correctional facility for not less than one year nor more than 20 years.
Note that here again the statute does not require an intent in the conspiracy to take items worth more than $200.  It does add a secondary intent element beyond that of larceny. In a conspiracy to larceny a person (1) has to intend to join with at least one other (2) with the joint intent of depriving an individual of his chattels permanently.  However, the value in the statute is not that hoped for and sought by the conspirators; it is "the aggregate value of the goods or merchandise involved." In other words, the belief that the gold penny would be worth thousands is irrelevant because the gold penny they sought did not actually exist.  Instead, the actual value of the chocolate gold penny "involved" was $12.95. Here, the general crime is conspiracy to commit grand larceny and the aggravating punishment element of $200 is further limited to items "involved" rather than aspirational.

Based on all this, I conclude that the $200 must be proven in these incohate offenses. I do find myself wondering whether attempted grand larceny can actually be charged. Conspiracy to grand larceny has its own statute, so there's no doubt that it can be charged. However, attempted grand larceny does not have a stand alone statute. This leads to a problem. Since 18.2-95 is a statute adding an aggravating punishment element the actual crime is complete without the $200 value. The defendant has no required intent to steal $200 or more. She just has a required intent to deprive an owner permanently of chattels. Therefore, it would seem that the only attempt which could be charged is that of simple larceny (which breaks down to petit larceny). The General Assembly has acknowledged this issue by putting the conspiracy to grand larceny statute in place (otherwise it would have the same problem). It has not so acted where attempted grand larceny is concerned.