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.

07 May 2014

Back to Double Jeopardy:
Charge or Punishment?

A couple weeks back, on a prior post about double jeopardy, a commenter took exception with Garrett v. United States, 471 U.S. 773 (1985). At the time, I promised to try to examine this more closely in a subsequent post. This happens to be a subsequent post.

Let's start by laying out what the double jeopardy clauses are in the federal and Virginia constitutions:
"Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., 5th Amendment.  

"He shall not . . . be put twice in jeopardy for the same offense." Va. Const. Article I Section 8.
The key to both of these is the term "same offense."  So, let's look at Webster's definition of offense:
5.     a :  a breach of a moral or social code
        b :  an infraction of law
This  is further clarified if we look to specifically legal definitions:
A crime or punishable violation of law of any type or magnitude. law.com
A crime or misdemeanor; a breach of the criminal laws. The Law Dictionary 
It seems fairly clear that the constitutions both meant for a particular crime, represented by a particular set of elements, to be punished only once - no matter how many times the legislatures, courts, and prosecutors desire to punish the offender.

So, how did we go from this to the point that the Virginia Court of Appeals could declare in Tharrington v. Commonwealth that it is perfectly acceptable to convict a defendant of larceny with intent to sell and the fully included lesser offense of larceny and punish the defendant for both?

I think it all starts with predicate offenses as applied in racketeering type offenses. An older example of this is Albrecht v. U.S., 273 U.S. 1 (1927):
There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information, four charged illegal possession of liquor, four illegal sale, and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit, and punishing also the completed transaction.
The rationale here is solid up to the last dictum sentence which creates a much broader rule than the one the case actually followed.  The rule the case followed seems to be that if the completed transaction (sale) could be done without an actualized potential act (possession) then both the actualized potential act and the completed transaction can be charged as crimes. This applies perfectly in almost any racketeering type offense. Almost all of them them use actualized potential acts (murder, drug sales, human trafficking) to prove a completed scheme (usually the running of a big or small criminal organization). While each actualized potential act is not in and of itself required to prove the scheme, discrete acts in the same or similar category are. Therefore, the both the actualized potential acts and the completed scheme can be prosecuted.

Garrett is a perfect example of this. Garrett had previously been convicted of drug trafficking and in a subsequent prosecution that previous prosecution was used as proof of a continuing criminal enterprise. The prior conviction was an actualized potential act. It was not a lesser included offense because Garrett could have completed any number of potential acts to fulfill the requirements of the continuing criminal enterprise statute. Therefore, there was no double jeopardy issue.

Unfortunately, the Court in Garrett latched onto that dictum in Albrecht and expanded it even further.
Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature—in this case Congress—intended that each violation be a separate offense. If Congress intended that there be only one offense—that is, a defendant could be convicted under either statutory provision for a single act, but not under both—there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis.
. . . 
Insofar as the question is one of legislative intent, the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress.
That has no logical mooring in the 5th Amendment and makes no sense in interpreting whether a prosecution is in violation of double jeopardy. Under that language, the only time double jeopardy adheres to any offense is if the legislature specifically intends it too. To be fair, I don't think it's actually been applied that way; I think it is mostly applied as "If the legislature says a person can be prosecuted for two crimes with exactly the same elements (for a single act) then they can."

And thus we come to Tharrington. Tharrington was convicted of grand larceny and grand larceny with intent to sell. This would never pass the Blockburger test because they both have exactly the same elements until grand larceny with intent to sell adds the intent element. In other words, grand larceny is entirely a lesser included offense of grand larceny with intent to sell and anyone prosecuted and convicted of both will be twice punished for the exact same behavior. 

Tharrington lifts the rule laid out in Lane v. Commonwealth, 51 VaApp 565 (2008):
When considering multiple punishments for a single transaction, the controlling factor is legislative intent. The legislature may determine the appropriate unit of prosecution and set the penalty for separate violations. Therefore, although multiple offenses may be the same, an accused may be subjected to legislatively authorized cumulative punishments. It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.
Although the Virginia Court of Appeals doesn't refer to the US Supreme Court, that's a distillation of the reasoning in Garrett.  In fact, it sets out the Garrett rule about as simply as it could be set out. Using this distillation of the Garrett rule, the Virginia Court of Appeals finds that the grand larceny with intent to sell statute has language indicating that the Virginia General Assembly intends for anyone who falls afoul of that particular statute to be punished twice for the same offense and upholds the dual convictions. As ridiculous as I think that result is, I can't blame the Virginia Court of Appeals; it was just following bad precedent set out by the US Supreme Court.

Having examined all that, here's the current state of double jeopardy protections. Perhaps uniquely under constitutional standards, legislatures determine whether prosecution under any two or more statutes violate double jeopardy protections - not the courts. Consequently, the "same offense" language has been interpreted out of this protection. In its place, the courts have substituted a maximum punishment standard. If the legislature passes 17 statutes which all punish a person for exactly the same act and states in each statute that it can be prosecuted even if it has the same elements as another offense then the person can be prosecuted and convicted of all 17 statutes despite the fact that their elements are all exactly the same.

Only if the legislature has failed to take a stance do the courts actually apply the "same offense" language from the double jeopardy clauses and try to determine whether the prosecuted offenses are duplicative in violation of double jeopardy protections.

The only conceptual framework which I can come up with in support of this is to not view the 17 criminal charges as 17 offenses, but as one offense and 17 aggregate punishment statutes. As much of a stretch as that model is, it has to be the one the courts are using, otherwise the deference given to the legislatures' decisions to make exactly overlapping crimes prosecutable against a single person for a single incident is entirely indefensible.

05 May 2014

Warriors Path Disc Golf

Gotta do something on the weekend, so I do disc golf. Here are some highlights. Blow it up to full screen, high definition to best see the discs in flight.

And, yes, I did have some bad throws, but you don't need to see me throwing into a tree 10 feet in front of my face.

24 April 2014

Materials for the 25 April 2014 CLE

The powerpoint presentation is here.

The breakdown of this year's cases is here.

The breakdowns of the last several years can be found here.

17 April 2014

Principals, Conspirators, and Accessories

If someone is involved involved in a crime they are a principal, accessory, or conspirator.  So, I thought I'd spend a little time explaining what each is and how they differ from one another. However, in order to keep it simple, I will avoid dealing with too many of the statutory variances.

First, lets look to the statutes:
§ 18.2-18 - In the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree.

§ 18.2-19 - In the case of every felony, every accessory after the fact shall be guilty of a Class 1 misdemeanor; provided, however, no person in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, or servant to the offender, who, after the commission of a felony, shall aid or assist a principal felon or accessory before the fact to avoid or escape from prosecution or punishment, shall be deemed an accessory after the fact.

§ 18.2-21 - An accessory, either before or after the fact, may, whether the principal felon be convicted or not, or be amenable to justice or not, be indicted, tried, convicted and punished in the county or corporation in which he became accessory, or in which the principal felon might be indicted. Any such accessory before the fact may be indicted either with such principal or separately.

§ 18.2-22 - If any person shall conspire, confederate or combine with another, either within or without this Commonwealth, to commit a felony within this Commonwealth, or if he shall so conspire, confederate or combine with another within this Commonwealth to commit a felony either within or without this Commonwealth, he shall be guilty of a felony which shall be punishable as follows . . . [various grades of felony punishments].
As you can see, Virginia does not statutorily define any of these various ways of participating in a crime. While we can infer there are two types of principals (1st and 2d degree), two type of accessories (before and after the fact), and one type of conspirator, the statutes provide little guidance outside of punishment and charging. So, as in much of Virginia law, we have to look to the cases for actual definitions.

A principal in the first degree is an active mover in the crime. Johnson v. Commonwealth, 220 Va. 146 (1977).  He's the one who shoplifts steak from the Mega-Mart or runs into the bank carrying a shotgun. 

A principal in the second degree is someone who procures, encourages, countenances, or approves the criminal act.  McMorris v. Commonwealth, 276 Va. 500 (2008). He is guilty as a principal in the second degree if he is guilty of some overt act done knowingly in furtherance of the commission of the crime, or if he shared in the criminal intent of the principal committing the crime.   Id.  This is the look out man or getaway driver.

An accessory before the fact is the same as a principal in the second degree except that the person is not present when the crime is actually performed. Sutton v. Commonwealth, 228 Va. 654 (1985). This is the guy who provides plans to the bank, but is in Idaho on the day the robbery takes place.

Under  the common law  an indictment was required to plead specifically if a defendant were to be convicted as a principal in the second degree or as an accessory before the fact. However, § 18.2-18 changed that so that an indictment which alleges participation as a principal in the first degree is sufficient if the defendant instead turns out to be a principal in the second degree or an accessory before the fact. Id.

 Accessory after the fact has three elements: (1) The felony must be completed. (2) The accused, at the time he assists or comforts the felon, must have notice, direct or implied, that the felon committed the crime.  (3) Third, the accused must receive, relieve, comfort, or assist the felon. Commonwealth v. Dalton, 259 Va. 249 (2000). Of course, § 18.2-19 exempts close family members and servants from punishment if they violate this law.

A conspirator is one of at least two people who agree to commit a crime. The crime does not have to succeed and there does not even need to be an act in furtherance of the conspiracy. When the agreement is reached the conspiracy is committed.  Although each conspirator must agree on the same objective, a conspirator is not required to know all the details of the conspiracy, the identity of the other conspirators, the part each member of the conspiracy is to play, or how the spoils of the conspiracy are to be divided. James v. Commonwealth, 53 VaApp 671 (2009).

In most cases, a conspirator is also a principal or accessory. However, because conspiracy requires a meeting of the minds, but no actual act in furtherance, one could be a conspirator without getting far enough along to become a principal or accessory. For instance, Mr. Pink and Mr. White meet randomly at Subway one day. Each recognizes the other from a previous robbery they committed. They sit to eat lunch together and while eating agree to rob the bank next door. However, before they can even leave their table, the off duty deputy who was eating lunch at the next table and heard them agree to rob the bank arrests them. Mr. Pink and Mr. White are clearly conspirators, but it is hard to  argue they are principals or accessories because they were stopped before they could undertake any actual act.

09 April 2014

They can convict me of both charges?!? Virginia's Statute 19.2--294

Outside of constitutional double jeopardy protections, in Virginia Va Code sec 19.2-294, deals with dual charging:
If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinancesconviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a state and a federal statute, a prosecution under the federal statute shall be a bar to a prosecution under the state statute. The provisions of this section shall not apply to any offense involving an act of terrorism as defined in § 18.2-46.4.
For purposes of this section, a prosecution under a federal statute shall be deemed to be commenced once jeopardy has attached.
The purpose of this statute was to limit prosecutions even when double jeopardy does not apply.  It limits the prosecution to an act rather than to a crime. See Owens v. Commonwealth, 129 Va 757 (1921)(stating that this statute was meant to prevent cases such as Arrington v. Commonwealth, 87 Va 96 (1890)(two separate prosecutions for the same act under different statutes)). However, the Virginia courts have both pulled the teeth out of this statute and neutered it.


To begin with, the courts have ruled that this statute does not apply if one of the crimes is a common law crime - and we all know that Virginia criminal law is replete with common law crimes. See Blythe v. Commonwealth, 222 Va. 722 (1981).  While this is a technically correct reading of the statute, it clearly falls well outside its intent. 

Nonetheless, we are left with an interesting question here. What of the hybrid statutes? Virginia has all sorts of statutes which add elements to common law crimes. Most prominent among these (at least in number of times charged) is probably felony larceny which is created under various statutes that add a particular aggravating element. 18.2-95 includes the elements of value ($200+) or an item (firearm); 18.2-104 makes prior convictions an aggravating element; 18.2-97 makes stealing a dog or certain farm animals an aggravating element. It seems that either under a legislative intent analysis or the application of the rule of lenity (construing the statute strictly against the Commonwealth) the inclusion of these hybrid laws would be called for.


Older cases seem to assume this statute barred concurrent prosecutions for different crimes rising from the same act and it was evenly specifically held to be so for a very short period of time.  Lash v. Commonwealth, 13 VaApp 251 (1991).  However, this was almost immediately overruled by the Court of Appeals sitting en banc in Hall v. Commonwealth, 14 VaApp 892 (1992). The Hall interpretation was later adopted by the Virginia Supreme Court. See Phillip v. Commonwealth, 257 Va 548 (1999).  Now the rule seems to be that if a second criminal charge is instituted at a point before conviction on the first they are not consecutive prosecutions because they both existed at the same time. See Phillips, supra (misdemeanor offenses tried in same hearing as the felony preliminary hearing in general district court do not keep the felonies from being pursued in circuit court), Schwartz v. Commonwealth, 41  VaApp 61 (2003)(a finding of delinquency on misdemeanor petitions in juvenile and domestic court during a transfer hearing does not bar prosecution of the felonies which are transferred to circuit court), Doss v. Commonwealth, 1995 VaApp No. 2003-93-3 (U) (warrants taken simultaneously, but tried in different courts do not violate the statute), and Phillips v. Commonwealth, 27 VaApp 674 (1998)( charges taken at different times, but heard in one hearing do not violate the statute). You'll note that all those cases, except the unpublished Doss, require a simultaneous hearing at some point. This leaves a question in my mind as to whether simultaneous prosecutions which occur at the same time before different courts violate the statute. My brain keeps telling me I've seen a case that says 'no', but I can't find it. Even without a case directly on point, as the "simultaneous hearing" is not part of the statute, but a creation of the courts, I strongly suspect that if a warrant based on a single act was still pending in the general district court the prosecution could simultaneously indict the defendant in circuit court at any time prior to the resolution of the charge in general district court. Anyway, the concurrent prosecution exception is also supported by a close reading of the statute and at least superficially supported by a reading of the facts in Arrington, which dealt with a subsequent prosecution based on a same act.


However, the coup de grace here comes from the cases which engage in fact parsing. Fact parsing entirely neutralizes this statute by making acts the exact same things as elements. In so doing, it makes the statute nothing more than the same protections that a defendant would get from the 5th Amendment. "The test of whether there are separate acts sustaining several offenses is whether the same evidence is required to sustain them."  Jefferson v. Commonwealth, 43 VaApp 361 (2004).

This addition to the statute is unsustainable from either the text of the statute or its purpose.  Merriam Webster online defines an act as "the doing of a thing" or "something done voluntarily." It defines evidence as "an outward sign", "something that furnishes proof", or "one who bears witness."  Let's test this out. Could a felon carrying a firearm in the pocket of his coat be convicted of both the charge of felon in possession and concealed weapon? The evidence required to prove felon in possession is carrying a weapon (the doing of a thing) and a prior felony conviction (status of the defendant). The evidence required to prove carrying a concealed weapon is carrying a weapon (the doing of a thing) and that the weapon is "hidden from common observation" (status of the firearm when carried). Of course, in Jefferson the Virginia Court of Appeals had no problem upholding the two convictions:
To sustain Jefferson's earlier conviction of carrying a concealed handgun, in violation of Code 18.2-308, the Commonwealth had to prove that Jefferson carried a handgun "about his person, hidden from common observation," without legal authorization to do so. That conviction did not require proof that Jefferson was a convicted felon. Conversely, to establish Jefferson's guilt in this case of violating Code 18.2-308.2, the Commonwealth had to prove that he had previously "been convicted of a felony" and that he "knowingly and intentionally possessed or transported any firearm." The Commonwealth was not required to prove that the handgun in Jefferson's possession was concealed. Hence, while possession of the handgun was conduct common to the prosecution of both statutory offenses, the attendant acts and legal disabilities necessary to sustain the two prosecutions were decidedly different.
Even the court recognizes that it is not dealing with acts when it upheld both convictions. It was dealing with different legal disabilities. In these cases the courts are engaging in a rather thin facade. They are calling elements "facts" and reducing this statute to nothing more than a restatement of the 5th Amendment's Blockburger test. Fact parsing is unsupportable by the text of the statute and rips the guts right out of it. Under fact parsing the statute is basically reduced to one simple statement: You can't prosecute two crimes, one of which is a lesser included in the other, in subsequent prosecutions.

This is not a line of interpretation that originated in Jefferson. Another example can be found ii Johnson v. Commonwealth, 38 Va App 137 (2002):
In the first instance, defendant admittedly was unlawfully operating a vehicle [act] while his privileges were in suspension [status]. In contrast, the subject prosecution resulted from such operation [same act] after he had been adjudicated an habitual offender [different status]. While driving was conduct common and necessary to each offense, the legal disability upon defendant that attended and was integral to the respective acts was significantly different. Thus, the "same evidence" would not produce a conviction for both offenses. Accordingly, the disparate "nature" of the acts saves the instant prosecution from the reach of Code 19.2-294.
All of which seems to have sprung from Fitzgerald v. Commonwealth, 11 Va App 625 (1991):
The "same act" involved in this case was the breaking of the doors of the places broken into.
. . . 
In this case, proof that the appellant damaged two doors and a window in entering these three establishments did not require proof of statutory burglary. Likewise, proof that he had entered these premises  during the nighttime to commit larceny did not require proof that he had damaged them in achieving entry.

Fact parsing is a very poor interpretation of the meaning of the statute and needs to be scrapped. However, the other two limitations of this statute are found in the statute themselves and only the General Assembly could change them. In my opinion, the best interpretation of the statute would be to apply it in the following circumstances:

I.  At least one element of each crime is set in a statute. This could be anything from an entirely statutory law such as DUI to something which just has one element set by statute such as grand larceny (value or certain items).

II.  One crime is charged subsequent to the completion of the prosecution of the other charge.

III.  They both contain the same act.
          A.  There is a single location, and
          B.  There is a single victim, and
          C.  There is a single time frame.