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.

01 April 2014

New Job

There have been some rumors and I've been denying them for the last few weeks because I thought the new job was supposed to be a secret until at least September. However, it's now been published in a local paper so here's a link to the pdf copy the Post Investigator sent me.  I can't link directly to their site because it is behind a pay wall.

I'll try to get back on the blog later today with more details. I'm posting this from a lexus tablet while I wait to do a special prosecution in the next county over (poaching/spotlighting charge). Six people have asked me about this since last night so I thought I'd best put something up.

More details later . . .

31 March 2014

They can convict me of both charges?!? Blockburger and Garrett

Question: Can I be convicted of crime X and crime Y for the same act?

I get asked this question often. The only things which vary are the crimes represented by X and Y. The answer is almost invariably yes. Unless one charge is a a lesser included of another or there is a statutory exception, if the facts prove the elements of both crimes you can be convicted of both.

Any analysis of this starts with the double jeopardy clause under the 5th Amendment of the U.S. Constitution: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Article I Section 8 (Criminal Prosecutions) of the Virginia Constitution has similar language, "nor be put twice in jeopardy for the same offense."  However it isn't particularly relevant since "the protections against double jeopardy afforded under the United States Constitution are identical with those embodied in Article I, section 8 of Virginia's Constitution." Bennefield v. Commonwealth, 21 VaApp 729 (1996).

The seminal case in this area is Blockburger v. United States, 284 U.S. 299 (1932). Under Blockburger, the test for whether a person can be charged with more than one crime has nothing to do with the fact that they rise from the exact same set of facts. Instead the test "is whether each provision requires proof of a fact which the other does not." In more modern parlance we would state this as "each crime must have one element that the other does not."

An example of this under Virginia law could be grand larceny and larceny third or subsequent. Both require a larceny, but each has an element the other does not. Grand larceny requires that the theft be of an item worth more than $200. Larceny third or subsequent has the obvious requirement that it be a third or subsequent theft.  Thus, if someone tries to steal a TV from GiantMart he can be charged with both grand larceny (if its value >= $200) and larceny third or subsequent (if he has twice previously been convicted of larcenous acts). This is true despite the fact that at core they both have the same crime (larceny). In Commonwealth v. Hudgins, 269 Va. 602 (2005), the Supreme Court of Virginia ruled that after a defendant had been acquitted of robbery he could thereafter be convicted of grand larceny from a person because robbery requires violence or intimidation while grand larceny from a person requires a theft >= $5.  In so ruling, the Virginia High Court overruled a Court of Appeals opinion which stated that the two crimes could not be charged for the same act because both crimes had petit larceny as a lesser included offense.

However, there is one significant exception to Blockburger. If the legislature has shown an intent to allow prosecution under two statutes despite the fact that one is included in another then both can be prosecuted. The case most often sited for this proposition seems to be Garrett v. United States, 471 U.S. 773 (1985). Garrett was a case in which the defendant tried to use conviction on a predicate offense as a shield against a continuing criminal enterprise charge (a RICO analogue for drug dealers) that required predicate convictions as an element. Instead of making a common sense finding that a predicate crime is not a lesser included offense, the opinion wanders about and stumbles over the finish line. In the process, it specifically excludes crimes wherein the entire time the crime is being committed both the greater and lesser included crimes are being committed. However, it does at one point state specifically "the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history."  In other words, "Where the legislature has authorized cumulative punishments, regardless of whether the offenses are the 'same,' the prosecutor may seek and the trial court may impose cumulative punishments in a single trial." Jordan v. Commonwealth, 2 VaApp 520 (1986).

The case in Virginia which seems to cause this to be raised most often is Brown v. Commonwealth, 230 Va. 310 (1985). In this case, the Virginia Supreme Court ruled that the Virginia General Assembly did not intend abduction to be charged in conjunction with other charges that necessarily require some restraint of the victim such as rape and robbery. As you might imagine, this is a strongly disfavored opinion and courts regularly work around it if the victim is moved half an inch unnecessarily or detained for half a second longer than the absolute bare minimum that a crime requires. A more recent application of this was in Tharrington v. Commonwealth, 58 VaApp 704 (2011), in which the Virginia Court of Appeals held that grand larceny and larceny with an intent to sell could both be prosecuted under the same set of facts because the Virginia General Assembly included the words "A violation of this section constitutes a separate and distinct offense" in the larceny with intent to sell statute. Va. Code Sec. 18.2-108.01.

24 March 2014

Yes, Virginia, You Can Steal From Your Spouse

Question: Can you steal from your spouse if you are still married?

This question comes up over and over and over again. Although it usually rises in the waning of a marriage as people are fighting over who gets the stuffed penguin they were given as a wedding gift, it also arises surprisingly often at an earlier stage of the marriage (thereafter often leading to the waning days of the marriage). So, I thought I'd try to clarify the issue.

Let's start with the common law that we took from England as we broke free. In common law, it would seem that the woman maintained her ownership of that realty she came into the marriage owning. Otherwise, the right of curtesy makes no sense. Under that right, upon the wife's death the husband took a life estate in property his wife brought into the marriage, but only if there were children born of the marriage.  I'll not delve further into that topic because it is exceedingly rare that real property is the subject of a larceny (hard to carry it away).

As for real property, let's go where every good American jurist goes to get our common law, Blackstone (Book 1 Chapter 15):

By marriage, the husband and wife are one person in law : that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband : under whose wing, protection, and cover, she performs every thing [. . .] Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. [. . . ] If the wife be indebted before marriage, the husband is bound afterwards to pay the debt ; for he has adopted her and her circumstances together.
Nothing too terribly surprising there. Back in the day, the husband had almost all the rights in a marriage and he took possession of every item of personalty his wife brought into the marriage or obtained thereafter. As "one person in law" the requirement that one take the property "of another" would seem to have made it impossible for married people to steal from each other.

However, Virginia changed all that a long time ago:

§ 55-35.  How married women may acquire and dispose of property 
A married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried and such power of use, control and disposition shall apply to all property of a married woman which has been acquired by her since April 4, 1877, or shall be hereafter acquired. Her husband's marital rights shall not entitle him to the possession or use, or to the rents, issues and profits, of such real estate during the coverture; nor shall the property of the wife be subject to the debts or liabilities of the husband.
So, by statutory creation, women and men while married have separate property rights. This all came about as part of the Married Woman's Act of 1876-77 and means women in Virginia have had a statutory right to own personal property while married since at least the passage of the statute. Of course, the converse of that is the fact that men now have separate personal property as well. The "one person in law" barrier was gone and spouses could no longer steal from each other with impunity.

Probably the earliest criminal case in which this may at least indirectly apply is Ambrose v. Commonwealth129 Va. 763 (1921). Ambrose was given a car to sell by the wife without the husband/owner's knowledge or permission. Without "one person in law", Ambrose was convicted of larceny. However, Ambrose is not as clean as one might wish. The Court does not mention § 55-35 and bases its reasoning on the fact that Ambrose and wife were eloping. Under the common law that opened up certain rights for the husband. Still, it's an early criminal case wherein the husband and wife clearly did not own the property jointly. If they did the fact that the wife gave it to Ambrose would have protected him from a larceny conviction because it's not larceny if an owner gives it to you willingly.

The case most often cited in this area is Stewart v. Commonwealth219 Va. 887 (1979). Stewart took his wife's car before a divorce was granted.  He tried to rely on the common law "one person in law" barrier and the Court shot him down relying on § 55-35. It concluded:
Marriage no longer gives a husband any legal interest in his wife's tangible personal property.. . . The purpose of the Married Woman's Act would be frustrated if a husband could steal with impunity from his wife, and we hold, therefore, that he may be prosecuted as any other thief for the larceny of her property. 
That's about as black and white as it can get. Still, there is confusion. Mostly this comes because everyone thinks of property owned during marriage as "marital property" subject to distribution during a divorce.  This of course, is a civil concept and it is not shared in criminal law. This has been addressed directly in McDuffie v. Commonwealth49 Va. App. 170 (2006).

In McDuffie the defendant took a car solely titled to and paid for by his wife without permission and wrecked it. He argued that he could neither be convicted of destroying another's vehicle nor of unauthorized use of another's vehicle. He claimed he had an ownership interest in the vehicle under the equitable distribution provisions of § 20-107.3, a statute laying out how property is distributed in a divorce proceeding. The Court rejects this argument stating: 
Any interest a spouse may have in marital property is an inchoate right that becomes vested only upon entry of a decree of equitable distribution in a divorce proceeding. Because no divorce proceeding was pending and, thus, no decree of equitable distribution had been entered with respect to the relative property interests of appellant and wife, appellant had only an inchoate and unvested interest, if any, in wife's automobile.
That draws the line when any personal property might become marital pretty clearly. Unless there's a decree of equitable distribution giving one spouse an interest in the property of another it does not exist and criminal charges involving the abuse or larceny of the property of another can go forward.

These cases can be everything from burglaries with the house cleaned out by one spouse all the way down to extremely minor thefts such as taking two cassette tapes. Ward v. Commonwealth, APR03, VaApp No. 2799-01-3 (U). Generally, they seem to involve a lot of car thefts. I think this is because the magistrates do not issue many low level warrants in this area, either from confusion over the difference between civil and criminal sides or just because they don't want to encourage every person getting a divorce to run to their office and charge their soon to be ex-spouse with stealing a broom, or hat, or dish towel.

17 March 2014

Virginia Deaths by Drugs

I realized that I hadn't looked at the last Medical Examiner's report on drug deaths in Virginia (2011), so I thought I'd do a quick breakdown.

First, the municipalities with the most per capita deaths by drugs.

Now the municipalities with the most per capita deaths by legal drugs.

Now the municipalities with the most per capita deaths by illegal drugs.

Overall Legal Drugs Illegal Drugs
1 Dickenson 57.2 Dickenson 44.5 Madison 15.2
2 Tazwell 49.2 Russell 38.3 Danville 9.3
3 Russell 48.7 Tazwell 35.8 Lancaster 8.9
4 Bland 44.0 Bland 29.3 Essex 8.9
5 Buchanan 38.2 Page 29.2 Richmond City 8.3

Tell me again how legalizing and regulating drugs will make things so much better?

And, before anyone starts arguing that this is all about statistical anomalies because of smaller populations, remember that it has been going on for quite a while now (posts from 2010 and 2011 A & B).

This may actually change in the future. Synthetic drugs, such as alpha-PVP (gravel), seem to be cutting into the pills' market share.

06 March 2014

Shaming and the "Meh" Factor

Every few years the press discovers  that somewhere in America judges are "shaming" defendants rather than just acting as automatons who hand out the usual sentence:
Though the practice was abandoned in the 1800s, over the last decade judges have been reviving shame-based sentencing in pockets across the country, doling out alternative punishments designed to humiliate the criminal and send a stern message to the public.  Chicago Tribune 2000.

Lately it hasn't been all that unusual either. The Gementera sentence -- taken last month to the Supreme Court -- is one of a growing number of "creative punishments" being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses.  Washington Post 2005.

But what's the alternative? In recent years, a number of judges have ordered what amounts to public shaming instead of prison time. Punishments have included shoveling manure, being made to sleep in a dog kennel, or standing on a busy street corner wearing a sign to tell the public of the crime you committed.  NPR 2013.
The news articles almost all follow the same pattern.  They list a series of shaming punishments handed down by various judges.  Then they state how the low born, common hoi polloi love these kinds of punishments.  Finally, a law professor is quoted bemoaning these punishments as inconsistent with normal punishments and therefore violations of the 8th Amendment's prohibition against cruel and unusual punishment.  If they are ever so PC and progressive, sometimes you even hear the words "human rights violations."

Of course, these arguments are spurious.  They make for interesting copy in a slow news cycle and give some few law professors  an issue that they can write papers about and get media attention from, but there's nothing more cruel in these punishments than there is in sending someone to jail.

In theory, sending someone to jail is a shaming punishment. We're all taught five purposes for imprisonment: (1) rehabilitation, (2) disability, (3) teaching the offender not to re-offend, (4) deterring others from offending, and (5) punishment. It's arguable that among these only disability does not involve shaming. The others involve a mixture of actual harm - loss of income, separation from family, inability to go to the local high school football game - with the shame involved from being sent to jail as a sign of societal disapproval. In rehabilitation, teaching an offender not to re-offend, and deterrence of others the shaming is motivational. In punishment only do we find shaming for shaming sake.

Of course, once anything becomes too familiar it loses its shame factor and this has happened with imprisonment.  LawProf does not even consider the shame angle in sending someone to jail because it is the regular way that someone is punished.  And anyone who spends time practicing criminal law quickly comes to realize that for a significant portion of the defendants going to jail is inconvenient or painful (especially when it forces them to go cold turkey), but being locked in jail doesn't shame them any more than they are ashamed to sit at home and watch reality TV night after night.

The same thing would happen if the judge ordered everyone who shoplifted to stand outside the door of the local MegaMart with a placard saying "I'm a thief." At first people would pay a lot of attention to the twenty guys standing outside and most of the offenders would be mortified.  Give it a year or two (probably much sooner) and the public would be ignoring the offenders and most of the offenders would be treating it like an opportunity to stand around and talk to like souls.

So, while shaming may be, and probably is, an excellent motivator for offenders, it must be unusually applied in order to be effective.  Using shaming against someone who has been a repeat offender for the last 25 years is not likely to be effective.  Additionally, using a shaming technique so often that it becomes the expected norm will blunt its effectiveness.  When might shaming work?  First time offenders would seem to be those against whom shaming would have the most affect.  A guy in high school shoplifts? Make him stand in a pink jumpsuit and paper party hat outside the local MegaMart from 10 - 6 Saturday and Sunday handing out pamphlets about how shoplifting harms the community. Will it guarantee that he won't re-offend? No, because nothing can guarantee that.  However, it is bound to have more affect on him and other potential offenders than hiding him in a detention center for the same weekend would.  And the shaming punishments should not be the same every time.  One time it should be the pink jumpsuit at MegaMart.  Another time it should be sitting on a bench in front of the courthouse with a sign saying "I am a THIEF" from 9-5 on a day court is in session. A third time an offender should be required to write a single page apology for driving under the influence and walk door to door handing it to whomever answers the door. etc. Varying the punishment keeps it from becoming usual and ineffective.

Will people scream bloody murder about these punishments? Of course they will.  And why will they scream bloody murder? Because they will notice the punishments and if a punishment is noticed it must be cruel because it actually affects people. Which, of course, is the point of any punishment - to affect people.  They are uncomfortable with these punishments because they notice them and that uncomfort must mean the punishment is wrong.  Better to just lock people in jail where everyone can forget about them.

26 February 2014

Detainers - Inside and Outside the Interstate Agreement

Some of you out there are lucky enough that you are safely ensconced in the center of a State and you never have to deal with the Interstate Agreement on Detainers. Unfortunately, we around here are not so lucky. With three other States in shouting distance, it's not too surprising when someone gets caught in the other State first and we have to wait our turn.  A detainer goes out to whichever prison that State has lodged the person in and then the games begin.

Every single prisoner out there seems to know the magic number 180. They hear from the guy in the cell next door, or a helpful counselor, or Uncle Bob (the family legal expert who's been to prison three times) that if they just notify Virginia that they want their trial then Virginia must come get them and try the case within 180 days or it goes away forever. They may get a lot of details about how everything works garbled, but they always remember that 180 days - and they constantly tell their attorney about it once they are shipped to Virginia.

So, what are the actual rules? Is the 180 day limit a rock solid, irrefutable speedy trial rule??

Of course not. Nothing's ever that simple in the law.

§ 53.1-210 is the statute in Virginia which contains the Agreement on Detainers. In Kentucky it's 440.450.  In Tennessee it's 40-31-101.  In West Virginia it's §62-14-1.  In North Carolina it's § 15A-761.  In Maryland it's § 8-405 (and the statutes around it).  That should cover most of the ones an attorney from Virginia should need. If you need  the version from Wyoming or Alaska you are on your own.

There are two events which actuate this interstate compact. First, Virginia must have lodged a detainer against someone serving a sentence in another State. The warden of the institution where the defendant is being held is required to notify the defendant that a detainer has been lodged against him. Second, the person must "cause" both the prosecutor and the court in the jurisdiction which issued the detainer to get a letter stating he wants to exercise his rights under the compact.

The mistake a lot of prisoners seem to make at this point is to send a letter themselves directly to the prosecutor and/or the trial court. Often, they even fail to send both letters. However, that error is not the primary reason that their effort fails.  It usually fails because of continuances once they are in Virgnia.

How the Interstate Agreement is Triggered

Under Article IV, the prisoner must write a letter, informing its recipients of her place of imprisonment and requesting a final disposition of the charges involved in the detainer. She then has to give it to the warden, who will then send it to the courts and prosecutors in all the jurisdictions from that particular State which have issued detainers. The warden also has to send a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Once all this arrives at the office of the prosecutor and the court the prisoner has caused it to be delivered.

Causing the letter to be delivered operates as a waiver of the prisoner's extradition rights and as an agreement that the prisoner will agree to serve any time given by the Virginia after she finishes serving her time in the original sentencing State.

Virginia also has the option to ask the original State for temporary custody of the prisoner. If this is done there is a delay of 30 days within which the governor of the original State may deny Virginia temporary custody either on the governor's own motion or the motion of the prisoner herself. Art IV.

What Causes Dismissals With Prejudice

After that, the prisoner is shipped to Virginia to face trial in the Commonwealth. There are two timelines within which the prisoner must be tried. The first is the 180 day timeline. This timeline starts from the moment the court and prosecutor receive the letter stating the defendant wants to be brought to Virginia for trial.  The second timeline is 120 days.1  This timeline starts from the day the prisoner is brought to Virginia by request of the Commonwealth without the prisoner so requesting.  Both of these timelines can be extended by continuances not objected to by the defendant.  However, if either timeline is reached the charges must be dismissed with prejudice.   Art. V(c).  The defendant has an affirmative duty to prove the court and prosecutor received the letters and appropriate certificates from the warden of the prisoner's original State more than 180 days prior.    See Eckard v. Commonwealth, 20 Va. App. 619 (1995).  If the sending State did not send the appropriate certifications with the letter the 180 limit is not held against Virginia. Id.

There's also an anti-shuttling provision in the compact. If a defendant is delivered to Virginia to face trial all of the charges which led to the detainer must be dealt with before the prisoner is shipped back to the original State. If they are not they are dismissed with prejudice. Art. III(d) and Art. IV(e).


There's one major limitation to this compact. It only applies to indictments, informations, and complaints.  For this compact to apply the case must be procedurally ready for trial upon the charging instrument linked to the detainer.  If there are procedures which are required other than trial - preliminary hearing, grand jury - then the Interstate Agreement on Detainers does not apply. In other words, if the detainer is based on a warrant neither the timelines nor the anti-shuttling provisions apply. See Locklear v. Commonwealth, 7 Va. App. 659 (1989), and Smith v. Commonwealth (U), DEC10, VaApp No. 2170-09-2.  Additionally, this compact does not apply to probation violations. Commonwealth v. Brown, 85 Va. Cir. 159 (2012); See Also Bolden v. Murray, 841 F. Supp. 742 (1975)(applying the same rule to the parole system probation supplanted). And it does not apply to a capias. Chu v. Commonwealth, 61 Va. Cir. 338 (2003)(court refers to capias as "bench warrant").

In other words, if a detainer is issued on a warrant, capias, or probation violation the prisoner can file all the letters he wants, but the compact does not apply and he cannot be shifted from the other State to Virginia under the Agreement. If he is shipped to Virginia anyway it is an extradition outside the compact and none of its protections apply. Instead the Commonwealth would be subject to the regular speedy trial constraints and nothing further.  This leads to an interesting question.  If the prisoner is in a jail in Virginia, but not under the terms of the compact, what authority allows the prisoner to be shipped back to the originating jurisdiction?

1 The 180 day limit is under Article III and the 120 day limit is under Article IV. Although Article IV read initially to me like the way Virginia is supposed to get the prisoner from the State currently holding him, Article V speaks of bringing someone to Virginia under either III or IV and case law indicates that III is from a prisoner's request while IV is from Virginia's request.  See Yiaadey v. Commonwealth, 29 Va. App. 534 (1999).

18 February 2014

Private Prosecutors

I must admit, before I became a prosecutor I had never heard of citizens hiring private prosecutors. I don't know if it was happening in any of the jurisdictions wherein I practiced as a defense attorney (I never saw it), but it is something our office bumps into every so often. It seems to be something that citizens want to do with misdemeanors more than felonies and I suspect this is the result of two factors: (1) the fact that citizens can file a misdemeanor complaint to the magistrate themselves and therefore are more vested in any warrant which is issued, and (2) the fact that hiring a private attorney to prosecute any kind of serious felony case would be prohibitively expensive.  In any event, until recently I had a bone deep belief that private prosecutors were not allowed for by the Virginia State Code and therefore a citizen could not hire her own. However, it seems I was semi-wrong.

The big case in this area is Cantrell v. Commonwealth, 229 Va. 387 (1985).  This case deals with the issue extensively and lays out a number of rules regarding the involvement of a private prosecutor.  Since it is so extensive, I am going to break it down the way I do most cases for my private notes:
Cantrell v. Commonwealth, 229 Va. 387 (1985):  (1) Whether a private prosecutor can appear is at the trial court's discretion.  (2) A private prosecutor “is absolutely prohibited from (a) taking any position, (b) making any argument, (c) offering any evidence, or (d) advocating any cause which would be forbidden to a public prosecutor.”  (3) A private prosecutor cannot (a) initiate a prosecution or (b) appear before a grand jury.  (4) The private prosecutor can take part in the case only with the approval of both (a) the trial judge, and (b) the Commonwealth Attorney.  (5) The private prosecutor cannot make the closing argument without the approval of the trial court.  (6) The private prosecutor cannot (a) take part in a decision to engage in plea bargaining, (b) deciding the terms of a plea bargain, or (c) a decision (i) to accept a plea of guilty to a lesser crime or (ii) to enter a nolle prosequi.  (7) The Commonwealth Attorney must remain in control of the case, although there is no specific limit as to how much work the private prosecutor can do.  (8) A private prosecutor representing someone with a civil interest in the same circumstance (a) violates Due Process under the Virginia Constitution and (b) requires no showing of prejudice on the defendant's part for reversal of a conviction.  
There are also several cases which address a bit of the issue.  The oldest I found is Compton v. Commonwealth, 163 Va. 999 (1934), in which the Virginia Supreme Court overturned a conviction because the Clerk of Court and High Sheriff, as private citizens, hired a private prosecutor and therefore tainted the case.  A few years later, in Commonwealth v. Duling, 79 Va. Cir. 764 (1934), a Virginia Circuit Court laid out the rule that the only way a private prosecutor can participate is with the Commonwealth Attorney's agreement.  Of course, this is a non-binding opinion, but it is well reasoned, persuasive, and its position was adopted in Cantrell. In more modern times, in Adkins v. Commonwealth, 26 Va. App. 14 (1997), the Court of Appeals overturned a conviction because an attorney who has been previously hired as a private prosecutor cannot subsequently be appointed as the special (governmental) prosecutor when the Commonwealth Attorney develops a conflict – even if the attorney stops taking money from his clients once appointed special prosecutor.  Finally, in Riner v. Commonwealth, 268 Va. 296 (2004), the Virginia Supreme Court held that it was within the trial court's discretion as to whether a conflict existed which would disqualify the private prosecutor (the trial court decided that the private prosecutor did not represent a civil interest against the defendant which would automatically disqualify the private prosecutor).

So, basically, if doubly approved by the judge and the public prosecutor, the hired gun prosecutor can take part in the case as long as he is under the control of the Commonwealth Attorney and has no civil case conflict. In particular, I think the civil case conflict rule is important, although it doesn't entirely eliminate the private prosecutor's monetary inducement to seek a conviction. After all, the party paying for the private prosecutor is paying him to be biased. However, the opinions seem to say that this was okay in Jolly Olde England, so it's okay in Virginia until the General Assembly says it ain't.

The only rule above that I don't think makes much sense is the prohibition against the private attorney making the closing argument unless the trial court approves – effectively creating a presumption that the public prosecutor should do the closing argument.  Since the private prosecutor is forbidden from arguing anything which a public prosecutor could not, I don't understand why there is an extra protection added to this specific aspect of the trial.  It would make more sense if the public prosecutor was required to make to both the opening statement and closing argument, as a demonstration that he was in control of the case. In fact, since the public prosecutor must stay in control of the case it would make much more sense if the presumption was that the public prosecutor is required to make the opening statement and thus demonstrate his control by laying out the evidence that will be presented. I suspect this is just one of those stray rulings that just keeps getting quoted and relied upon over and over again without any thought put into it.

15 February 2014

Jury Nullification

A pretty good explanation:

As anyone who has read this blawg for longer than two weeks knows, I am not one of those that thinks the application of the jurors' prejudices to a case is the universal panacea that others believe.

03 February 2014

Who Pays the Piper? The Complaining Witness?

§ 19.2-229. When complaining witness required to give security for costs.
For good cause the court may require a complaining witness to give security for the costs and if he fails to do so dismiss the prosecution at his costs.
I tripped across this statute years back and I've always wondered how it was meant to be applied. I looked on Lexis and did not find any annotations and I've never seen a court apply this, so my curiosity was never really satisfied.

Today, while I was researching something else, I finally ran across something that helps explain the statute. Pifer v. Commonwealth, 14 Gratt. 710 (1858) is a Virginia Supreme Court case which has a monograph attached to it explaining who should have to pay what costs. It lays out several cases which put the costs squarely at the feet of the complaining witness if the complaining witness took the charges out herself rather than being required to testify.
A volunteer informer ought to be made a prosecutor, and liable for costs in case of failure; but one who is compelled to be an informer, cannot be considered a prosecutor. Wortham v. Com., 5 Rand. 669; Com. v. Dove, 2 Va. Cas. 29.
And on a trial for a misdemeanor, if the jury find for the defendant, the voluntary informer is liable for the costs, and after verdict the prosecutor cannot show by parol evidence that he was called on by the grand jury, and did not voluntarily give the information.  Com. v. Dove, 2 Va. Cas. 29.
[T]he prosecutor's insolvency or inability to pay costs is, ordinarily, good cause for ruling him to find security for such payment; but if, in the opinion of the court, public justice requires that the prosecution should proceed, it may refuse to dismiss the indictment, though the prosecutor be insolvent, and security for costs be not given.  Com. v. Hill, 9 Leigh 601.
On an indictment for an assault and battery on the voluntary information of the person assaulted, the informer and prosecutor, being the only witness for the prosecution, is a competent witness, though liable for costs in case defendant is acquitted.  Gilliam v. Commonwealth, 4 Leigh 688.
Of course, these cases aren't operating off of the modern day statute. Although not directly interpreting it, I think they are operating off of this statute (from my copy of the 1884 statute book):

Part 6, supra, is still in the Virginia Code as § 19.2-331 and I think the vast majority of cases in which this applies - and applied - are misdemeanors. There is no reason to think this case law does not apply to the current statute.

Why is this important? Because in Virginia everyone can go and fill out their own complaint and present it to a magistrate, without the participation of a Commonwealth Attorney or police officer. I assume, without having done the research, that some similar process existed back in the 1800's.

When a citizen goes to the magistrate on her own, presenting a complaint and asking for a warrant, that citizen is a "volunteer informer." As well, presenting a complaint also makes her the very epitome of a "complaining witness."  Furthermore, in the absence of a prosecuting attorney, § 19.2-265.5 seems to make it clear that the complaining witness fills that slot.

I can't find anything in the modern statutes which relieves a volunteer informer / complaining witness of her duty to pay for the prosecution if she loses her case.  If she went voluntarily to the entity (magistrate or grand jury) which issued the warrant or indictment, she is on the hook.  All § 19.2-229 does is allow the judge to require the complaining witness to put the money up ahead of time and if that witness either cannot or refuses to do so dismiss the case and bill the complaining witness for the costs.

In my personal opinion, the "good cause shown" part of the statute limits the class of those whom the judge can apply this statute against. Good cause would probably be the fact that someone is a frequent abuser of the system, filing charges often and then dropping them. This could the person who - at least thrice a year - gets in drunk fights, runs to the magistrate to charge everybody the next day, and then wants to drop it when it goes to court a month later. This could be the merchant who swears out bad check warrants, knowing full well that his employee turnover rate is so great there is no way he can prove 75% of them. Most helpfully, it could be used on counter warrants. These happen when someone charged with an offense herself runs to the magistrate and takes out warrants against those who are witnesses against her in order to muddy the waters.

Still, the amount of proactivity required in order to do this would be prohibitive in almost all cases. Someone would have to search through all the charging papers and cull those which fell afoul of the standards set. On top of that, the judge almost never sees the complaining witness until they show up for trial and therefore could only take the allowed statutory action in the seconds before the trial was set to commence. The only possible working framework I can see for this is if the judge issued a writ of mandamus, requiring a particularly troublesome abuser of the system from coming to court unless she had fulfilled the conditions of § 19.2-229.