30 June 2003

Going into a prison / jail:

This article about how the Innocence Project is growing like a vine in Kentucky struck a cord with me when it talked about going into a prison / jail:
[The client] was incarcerated at the Kentucky State Penitentiary in Eddyville, a maximum-security prison that visitors describe as dark and foreboding.

"It was probably the most nerve-racking occasion in my fledgeling legal career," said Turner, now a 27-year-old attorney in Lexington.

The guards were not exactly welcoming, he said, and performed a pat down, which involved removing his shoes and socks and an inspection of his mouth.

"I almost felt like I was being interned in prison," said Turner, a suburban Cincinnati native.

. . .

There were times, [another student] said, when she would have "felt safer with a gun."

One of those times was when the former teacher walked through a yard filled with hundreds of unrestrained prisoners with only a single guard to protect her. Another was when she went to Eddyville and found herself ushered into a room filled with death row inmates visiting with their families. Aside from their shackles and handcuffs, the inmates were free to move around the room, a scene that scared Albright Louis.
I usually find that the first visit to a prison or jail is a little touch and go but after they get to know you things get better. Still, I understand the feelings.

One of the first things you realize (and have to get over) while visiting your clients at large jails or prisons is that the prisoners can almost certainly take over any area of the prison they want to, including the one you are in. It doesn't happen because they understand that if they do they can't get out of the area, they cannot win the confrontation to follow, and they will be punished (and, I'm convinced, a lot of them like the structured existence of prison and don't want to rebel). Still, last Saturday morning as I stood in a hallway in Richmond jail and 30 prisoners walked down the hall passing within a foot or two of me - with no guard - I remembered the feelings I had when I first began to visit jails. Of course, hearing a couple of them say something to the effect of "that's what I need - a paid attorney" kinda took the edge off the situation.

Another weird thing about visiting prisons occurs when you go to the female section. First, let me premise this by saying that I am short and round; I've never been skinny and over the years I've not made any progress in that direction. But every time I walk into the the female section in my lawyer suit eyes swivel and suddenly I feel as though I have metamorphosed into Tom Cruise. It's like being dumped into a pool with a group of hungry female sharks. And you have to be very, very careful during the meetings with your client in the private rooms. I had one client start trying to tell me stories about her and another girl in the shower (In response to: And what were you doing when the police raided the place?). She got about ten seconds into it - all the while watching me very closely - before I realized it had absolutely nothing to do with the case and stopped her. Another time a woman leaned forward to thank me for helping her and put her hand upon my knee. As I start to say "no problem," I suddenly realize the hand is migrating up my leg. I popped out of my seat over to the call box for the deputy in about .0000097 seconds. "Gotta go, got clients over on the mens' side to see." One other thing happens on the womens' side which is really kind of annoying is the crying. I've asked female colleagues if this happens to them and they tell me it is rare. But I'd estimate at least 50% of my female clients cry during the initial interview. And they watch me to see how I react to the crying. And they stop when they realize I am just sitting there waiting for them to quit. And then they just go on with the interview as though nothing happened.

I will say one thing, women prisoners show a scary ability to size you up better than men do1. I've had women tell me that I'm single, that I came from another State, that I'm Catholic, etc. The one who told me I was Catholic really threw me. I could see she was sizing me up but then she just said "You're Catholic aren't you?" To this day I do not know what gave it away. I know there had to be some sort of tell but I never could figure it out. Of course, then she tried to manipulate me with the information and all the wonderment just drained away.

1 I think this is because men do not try to size you up in the initial interview for who you are but for your willingness and ability to fight.


If you are convicted of a felony in another country the government can still send you to prison on Exile charges. Even if that other country doesn't provide you anything near the same level of legal rights as would be required in the U.S. (no jury etc.)


The feds went to great pains and played a number of games in order to put the two sniper defendants where they would be most likely to be killed. But they might have screwed up putting them in different jurisdictions. The two prosecutors have different theories and the two defense teams seem to be taking advantage of the confusion to adopt the other county's prosecutor's argument.

And in the continuing reporting on Horan (the prosecutor in Fairfax):
But Horan said he didn't see any common ground between his prosecution and either defense team. "For me to team up with any of that crowd," Horan said, "I'd have to be under a spell."
Not quite as bad as before but still smacks of bravado rather than legal acumen.


The NYTimes is dubious about the unconstitutionality of government being able to kill non-retarded as opposed to the retarded:
Even some of the public defenders eagerly making use of the Atkins decision sometimes wonder about the logic of it. ''Looking over some of the people on the row, there are people who, O.K., are probably not mentally retarded -- maybe they have I.Q.'s of 80,'' David Bodiker, the Ohio public defender, says. ''They have had horrible lives, they flunked out of school, but they don't quite make the grade, so to speak. And you wonder why should there be that distinction? I'm looking down my list of guys on the row, and I see, for instance, David Allen: I.Q. 82. Poor grades. Born premature. Psychiatric problems dating back to age 8. Reginald Brooks. He had an I.Q. of 77 at one time, then 89. Now he's probably got about 91. His problem is more in mental health -- schizophrenia.''

Bodiker finds it troubling that some inmates perform better on I.Q. tests the longer they've been in prison, which means that while they still suffer from cognitive deficits, they may no longer technically qualify as mentally retarded. Partly they do better because they may be taking an I.Q. test for the fourth or fifth time, reaping the benefits of a practice effect. But more likely, their improved scores reflect the fact that, as Caroline Everington, a forensic mental retardation expert, puts it, ''in prison, many of them are living in a stable environment for the first time in their lives.'' In the strictest sense, these prison-improved scores are unimportant: the focus of the Atkins decision is on a person's mental status at the time of the crime, not the time of execution. And I.Q. scores must be backed up with tests of a person's ''adaptive functioning.'' But in a broader way they do matter: they remind you that the elements that make up a diagnosis of mental retardation are fungible. The reasons for that are perfectly legitimate, but when the diagnosis matters in the way it does here, it becomes a little scary.
Personally, I think the decision was just bad. Even putting aside the fact that the federal supreme court imposed an evolving standards of decency decision upon us when there was no strong showing of evolution, this is going to end up with battle after battle between experts and jurors/judges guessing who's right. Instead of clarifying the law the decision muddled it.


Connecticut is closing alternative programs for drug addicts in order to save money in the short run. It is sacrificing long term budgetary concerns by virtually guaranteeing that the convicts will be back time and again. Of course, it does guarantee that there will be steady employment in those communities which host jails and/or prisons.

They should at least try to get their drug courts back online. Drug courts are about the only program everyone thinks effective and it is a shame to lose them.


01 July means new laws in Virgnia. Of course, the politically correct path was taken and the DUI laws got tougher (as they will every year until prohibition is reimposed). It will be interesting to see if the antipartial birth abortion bill will survive constitutional review this time.


People smuggling in the Western U.S.


Not sure what that's all about (I'll have to go look later today) but it is funny.

Found here.

Matt, over at Stop the Bleating!, pointed me to the decision. I think that - assuming the facts are exactly as the 9th says - they were probably right in reducing the robbery thru use of a firearm to just robbery (not that the guy's gonna get out anytime soon). As Matt points out, the decision probably would be different here in the good old 4th.


A novel excuse: I robbed the bank so I could get crack to alleviate the pain I'm in from cancer.


Why do criminals flee the U.S. and go to Mexico?
For one thing, Mexico routinely declines to extradite suspects facing life in prison or the death penalty. Mexico's Supreme Court, which favors rehabilitation and views capital punishment and no-parole sentences as cruel, has blocked numerous extraditions until U.S. authorities agreed to lower the potential punishment a suspect faced in an American court.
It's sad that the bar for "cruel" punishment is actually lower in Mexico than it is here.


In Canada they are charging people with crimes of speech. Not action, not incitement - SPEECH.

We haven't even gone that far in Virginia. We tried pretty hard with the cross-burning statute but the federal supreme court told us we couldn't do that. We have to prove that the burning is meant to intimidate (which really shouldn't be all that hard in most cases). Still, we've never made pure speech illegal.


Apparently the attornies in California called the State Legislature's abrogation of its statute of limitations the "Early Inheritance Act."
One of his clients, a multimillionaire, was a target. There is no evidence, Clancy said, that the man ever abused his daughter when she was a little girl. But now that she's grown, the daughter wants to be kept in style and is not above a little blackmail, he said. She would make regular calls to her father demanding money or she would turn him in for child molestation, Clancy said.
Of course there were also issues of "repressed memory" silliness and, of course, the actual reason for statutes of limitations:
"How do you defend yourself against a 30- or 40-year-old crime where there are no times or dates -- just emotions? As a public policy matter, it's not fair."
As you'll recall, the federal supreme court rejected the abrogation as ex post facto.


Crimes at the mall in Victorville, California are up since the kids got out of school.
Most problems relate to kids being left unattended in the mall and other retail stores while parents go do something else, said Ekis and mall officials. Oftentimes, parents will drop off kids to spend the afternoon at the mall and watch a movie in the theater, said Janice Olsen, the mall's general manager.

"Parents should not just drop off kids," Olsen said. "An unattended child anywhere is a recipe for trouble."

At the mall, kids get bored, congregate near the mall's theater entrance and food court areas, and prevent shoppers from moving freely through the mall, said Ekis.

"We don't permit kids to just hang around," Olsen said. "We are a shopping mall."
Don't permit? No, I'm sure it's more like they encourage kids to hang around.

Kids spend money. They buy tons of food, spend money at the movie theater, buy overpriced clothes because they want to look cool (or whatever the current term is), and they purchase all that silly-useless garbage on the carts as you walk thru the mall. I'm sure the mall makes a lot more money than it loses do to the increase in petty crimes (which I'm sure occur).


For those who might prefer the inquisitorial method of jurisprudence - the system ain't working in India.

However, they are trying to fix it.


An interesting analysis of the different ways bodies are disposed of and what is done to ID them when they are found.


I guess they never did "figure out a way to keep the young ones moral after school."

Just like the song promises, they're betting out in I-O-WAY.

Guess that boy's band thing never really took off.

Sorry, it's hard to be serious about private citizens placing bets while States run around hawking lotteries - the biggest scam of them all.


"Community corrections is separating the folks you are scared of from those you are simply mad at."

It's a good distinction; I wish them luck with their alternative approach to non-violent felons.


The citizens of D.C. are fighting against a very poorly planned halfway house for prisoners being released from prison. The company who has the contract got the location approved by flying under the radar and is now fighting tooth and nail to keep its approval.


29 June 2003

Common Sense on the web:

A solid reason why someone would be a criminal defense attorney.

A good explanation why racially biased admission policies remain in place.


Playing games with the court:

Last Friday I was in a rural court when Mr. "J" appeared for at least the 8th time (that I've seen him) on the same charge. That morning one of the more prominent local attorneys has sent a letter and called the court stating that he has been hired and asking the court to continue the trial until a date when he can be present. This isn't an unusual request from the lawyer; people often hire lawyers at the last second (because they are scrambling to get the money) and the courts usually accommodate them.

However, on this date the judge looks down from her bench with a look that approaches pure scorn. She reads off each and every time Mr. J has been ordered to be in court for this case and the excuses he has given each time. The time prior to this Mr. J had appeared with a letter from "Liberty Law Offices" and saying he had hired an attorney no one had ever heard of. At this point the prosecutor chips in and tells the judge that he has checked with the Bar and there is not a lawyer by that name in Virginia. The judge starts to grill Mr. J about that and Mr. J swears that the guy exists and actually produces another letter he has from the attorney. This one says that the attorney is no longer representing Mr. J because Mr. J has hired another attorney. Prosecutor: "Well then judge, I'd ask you to issue a show cause on this attorney because he cannot just fail to appear when no order has been signed releasing him from the case." The judge issues the show cause.

Then the judge starts to tell Mr. J that by all the games he's been playing he has waived his right to counsel and has the deputy present him with a waiver form to sign. Mr. J starts to have a fit and the judge turns to the prosecutor and asks him what he thinks. At that point the prosecutor does something which is pretty slick: "Your honor, we all know the counsel he's hired this time, I say we let him be represented by the counsel of his choice and that we give his attorney time to prepare his case. In the meantime I ask that you revoke his bond." The judge looks at him quizzically for a second and agrees. The man is led away fussing about how he wants to appeal.

After the court has adjourned a number of us are in the Clerk's office telling war stories when the Clerk tells us that Mr. J's daughter had come to the office and asked why her father had been taken to jail. The clerk tells her its because the lawyer from the letter is not in court. Daughter: "I typed that letter last night myself."

Somehow, I suspect more charges will be filed.


A collection agency sent a letter to McHugh stating that it was considering criminal prosecution if she did not pay off a check. She called and was bullied by someone claiming to be an attorney who threatened her often and at great length with the "fact" that the police were going to come get her if she did not pay the check off. Panicked, McHugh pays off the check that day. Checking later she discovers that the check had already been paid. Not surprisingly, she sues. And she wins (including attorney fees). Chief Judge Wilson makes it very clear that he is not happy with this company:
"In this case, Check Investors intentionally panicked McHugh causing her to pay a debt she did not owe. Check investors, through its overzealous, deceitful collection agent, clearly intended to cause McHugh severe emotional distress, and she in fact experienced severe emotional distress."
McHugh v. Check Investors Inc., No. Civ.A. 5:02CV00106 (W.D.Va. May 21, 2003).

Her lawyer is quoted in the Virginia Lawyers Weekly as saying:
"They basically told [McHugh] if she didn't pay the debt within an hour, they would come and arrest her. . . People who don't know much about the law - a tactic like that can work."
Well, I do know the law (at least in Virginia) and this sort of thing would scare the living daylights out of me as well.

In Virginia, if your check bounces and the entity in receipt of the check sends you notice you have five days to pay (even if you don't get the letter). If you do not, this is one of the statutes wherein the Legislature has abolished the presumption of innocence. You are guilty unless you can prove you are innocent. Every time I read that statute - and many others like it in Virginia - the words "impermissible burden shifting" come to mind. But the Virginia Courts Appellate do not agree with me.

A lot of retailers use that statute to turn the local prosecutor into their bill collection agency. People who have never even been near a court before are dragged in so that the convenience store down the road can get its $28 (plus $25 return fee). In some jurisdictions the prosecutors drop the case if the check is paid off in others they do not - the retailer could care less as long as he gets his money. You see the same retailers in week after week after week doing this - they don't even try civil remedies.

So, yes, I would be afraid if a letter arrived at my home two days after it was mailed and I couldn't get ahold of the Agent for the company for another couple of days. Because I know that no matter how convinced I am of my innocence when that fifth day passes they can file criminal charges against me. And what if I did make some sort of error? After all, the collector in this case was talking about a check from four years earlier. I'd have to contact my bank about something that far back and they would probably have to mail the information to me (they seem to have to mail everything after three months have passed). I'd pay too in order to avoid the possibility of getting a criminal conviction. Hopefully I'd follow thru like this lady did afterward.


28 June 2003

Top ten sites which referred others to my blawg this week (most cited on the right side):

(1) The Volohk Conspiracy
(2) Ernie the Attorney
(3) SW Virginia Law Blog
(4) Screaming Bean
(6) Blawg
(7) How Appealing
(8) Freespace
(9) Stop the Bleating!
(10) Legal Ramblings


And, amazingly, there are still occasions wherein the law acts as a shield rather than a sword:

The federal supreme court says that before you can kill a defendant you must tell the jury the factors which led to him being this way. Mitigation evidence is required.

States cannot make ex post facto changes to their statutes of limitations which allow accused to be brought to trial even thought the statute of limitations has already run once.

Of course, this is not too much of a problem in Virginia since we don't believe in statutes of limitations for felonies.


A federal judge has resigned because the Congress has gone so far in restricting the judge's discretion that it has basically left federal judges as the head baliff (only responsible for making sure that things are run in an orderly, legal manner).


An internet scam brings a man who is trying to pick up little girls to Chesterfield where he is arrested for attempting to take indecent liberties with a minor. He's convicted and gets one year in jail.

I'm conflicted by this. On the one hand, I'm happy to see these guys caught before they actually do harm but, on the other hand, I really don't want them lured to my home county in order to do so. Of course, the nightmare is that some sicko comes to the county, misses his "appointment," and then just starts cruising around looking for an alternative way to entertain himself. Not a happy thought.


Belonging to the wrong political party in Egypt can get you arrested, tortured into confessing, tried, and - if found guilty - 25 years in prison.


Anyone doing legal work must rely on the integrity of his staff. At a certain point it becomes impossible to monitor everything yourself (no matter what the Bar seems to think) and you have to trust someone. I don't know what I'd do if I found out a trusted employee who had worked for me for 10 years had stolen all sorts of money from me. Maybe I'd just be glad that she didn't take it from the escrow account and get me thrown out of the Bar.


"It's an unpleasant situation," city attorney Zach Kelly said. "It's not that the city wants to deprive the little girl of a pony."
Then why did they?


"Unborn Child" or "Fetus?"

I suspect that this will be an interesting case on appeal as the court grapples with whether the legislature can protect the unborn from others when it cannot protect a fetus from its own parent. Bascially, I think it can because there is no right to privacy attached to the third party killer.


The windshield killer got 50 years.


The San Fran prosecutor has caved and will not prosecute thousands of people cited for violations during anti-war demonstrations. As much as I hate to say it, I think he is right in saying that it is darn near impossible to make individualized cases when there were mass arrests.


Many thanks to Orin Kerr, over at The Volokh Conspiracy, for his kind words and the numerous hits which have come as a consequence.


27 June 2003

Some stories just have to be told:
"A cornered police fugitive tried to escape on a child’s pink bicycle he stole Wednesday from a yard in Charlottesville, authorities said.
. . .
[T]he man snatched a tiny pink bike, mounted it and began pedaling.

With wheels only 8 inches in diameter, the bike didn’t make it far. The man went about 30 feet before police caught up with him."


Malvo's lawyers are seeking evidence which tends to show that Malvo was under Mohammed's control at the times up to and thru the acts.

On a side note - the prosecutor in Fairfax is either badly overplaying his hand or he is being made out to look the fool by the media. He is constantly being protrayed as answering everything with scorn and bravado rather than facts and law. This case is so strong that he should win walking away but if he's not careful he's going to show his rear just enough to build the countercurrent which keeps the kid from being killed in his case.1

1 Let's not delude ourselves; other jurisdictions are just waiting to step in and prosecute if this prosecutor steps on it. Eventually, the kid will be found guilty and 10-15 years from now - after all the appeals and habei are exhausted - killed.


Putting the screws to Governor Warner:

Two Deans from Virginia's law schools are asking the Governor to stop the execution of a man because there were technical flaws in his jury instructions. This is bad for the Governor whichever choice he makes. He can either let a man have another sentencing hearing because of the technical error - thus setting a precedent for a number of other capital defendants - or he can allow a man to be killed despite that the jury might have sentenced him to life imprisonment if the instruction had been proper. If he chooses the less of the two political evils he'll let the man be killed. Morally wrong - politically right.


El-Amin is going to plead guilty and serve 37 months in ClubFed. You have to respect the fact that as part of his plea agreement he made sure his wife would be spared from going to prison.


Obviously there was some sort of problem with the prosecution's case. A shame the article does not tell us more. I know I'm curious - Chesterfield prosecutors are not known for their benevolence in these sorts of cases.


The woman who ran over the homeless guy and left him to die in her garage was found guilty of murder.

The main defense was that "murder has to be an act not an omission." Therefore, since she did not intend to hit and kill him she was not responsible for murder. Intellectually that argument has some merit but there is no way a jury buys it. Of course, it's not like the defense attorney had much else to work with and it will provide him with a valid appealable issue.

Sentencing is pending.


The Bee's a buzzin':

You know the if the RegisterBee is calling for a change in the rules of procedure which is pro-defendant that something is really wrong with the system. Of course, it is pretty much universally acknowledged that the 21 day rule is unsupportable. The reasoning is interesting: The 21 day rule needs to go away because it is casting doubt on the guilt of capital defendants which is making people wonder whether innocent people might be getting convicted of lesser crimes as well - and we can't have people realizing - oops, I meant thinking - that innocent people get convicted.


OxyContin: The pros and the extreme cons: "Unfortunately, it’s a preferred drug for opioid abusers."

In my experience, this drug has not reached the level of cocaine, heroin, or methadone. However, it has passed things such as ketamine and psilocybins. I understand that in more rural areas - with less attachment to the drug trade from up North - it is more of a problem.

The main effect I've seen is that the local street drug unit has started taking pills off people and sending them to the lab for analysis. Most of the time they just come back as anything from aspirin to prescription drugs which I've never heard of before. This causes trouble for your basic woman who works at the Waffle House who complained that she had a back pain, was given some pills by another worker (medical self-help happens a lot among those with only so much money to spread around), and without thinking about it lets the officer search her purse. She knows she hasn't got any illegal drugs in there because she's never done anything other than a little weed when she was in high school. The next thing she knows there is a felony warrant for her arrest for being in possession of a schedule II drug and the prosecutor, the officer and I are all huddled in the corner of a courtroom reading the chemical analysis and trying to figure out exactly what the heck that six-syllable latin/greek word means. In busier jurisdictions the prosecutor usually drops the charge - in less busy, more conservative jurisdictions the client usually gets a misdemeanor with no time and a minor fine.


Justice Scalia's view of the future of the law in this area clearly has a "same planet, different world" sort of feel when compared with the majority's view. Whereas Scalia sees this ruling as the first step in a downward spiral of judicial inconsistency and legislative disempowerment, Kennedy sees it as the first step toward a more modern view of individualized freedom and liberty. Who is right? No one today can say. I suppose that's one of the many things that keeps the Supreme Court such a fascinating body to watch from term to term.
I can say. I've not read the case yet but it appears that Scalia is on the mark. Stare decisis, the bedrock upon which Casey was decided seems to have turned into sand at the behest of an ever left-leaning court.

It really does feel as though the Court has slipped back into the mode of legislating mores. It's fun to read Scalia's dissents in these matters as he rips into the false reasoning and hypocrisy behind result oriented decisions. However, it feels as though he has entirely lost the ability to persuade. They certainly aren't changing any minds on the court.

Personally, I am very disturbed by the weakening of stare decisis. It opens a whole new world of argument wherein the parties pay far less attention to the law as it has been and lends itself to arguments based upon what the parties believe the current members of the court, with their current dispositions, will render constitutional.


26 June 2003

Ethics and the Criminal Lawyer:

Quoted from Harvard Journal of Law and Public Policy, Lawyers and Truth-Telling, Albert W. Alshuler (Volume 26, Number 1, Winter 2003)**:
"Some lawyers say they never know what the truth is - not even when a client has confessed his guilt. Even more reject the conventional wisdom that a lawyer should describe the attorney-client privilege to the client and press the client hard for the truth to avoid being surprised at trial.8 These lawyers don't want their clients to level with them. Not knowing the truth makes it easier to avoid the ethical issue.

8: Standard 4-3.2 of the ABA Standards of Criminal Justice:

(a) As soon as is practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client's responses.
(b) Defense counsel should not instruct the client or intimate to the client inn any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.
First, let me disclose that I am not a member of the ABA (for various reasons which need not be discussed here).

Second, the part about never knowing what the truth is - not even when a client has confessed his guilt is bogus. (A) Anyone who has done this sort of work for any period of time knows that a number of confessions are garbage (although it is near impossible to know exactly how many). We've all had cases where the client wrote "what the officer told me;" my worst case along these lines was when a client of mine with serious mental issues wrote and rewrote the confession several times at the Detective's prompting until he wrote exactly what the Detective wanted in it. Strangely enough - at least in the communities I practice in - these sessions are never videotaped so my client's claim that he wrote what the officer told him to cannot be verified (and the judge always sides with the officer).

(B) Multiple stories: here's a conundrum I've run into several times: as your representation progresses the client tells you 3 different stories. Each is prefaced by "O.K., this is what really happened" and the third meshes pretty much with the prosecutor's theory of the case. When you get to trial it becomes obvious that story number 2 will work better in his defense. Client, not being a total idiot, decides that he wants to tell story number 2 and now swears that he just made up story 3. You don't believe him but you don't know because you weren't there and you know your client has told multiple tales. Do you do a noisy withdrawal or allow him to testify? My answer is that I am not the trier of the facts; I am this man's advocate and he has a constitutional right to testify. Therefore, he testifies.

(C) I've only had one client admit to a crime in my presence and then expect me to defend her on a theory contrary to that confession. Of course, the thing I ran into was that I figured out that at least part of her "confession" was a lie and she told me and anybody who would listen so many different stories that I did not feel that I knew what the truth was. I had a belief based upon my judgment of which parts of which stories were true but I couldn't stop her from testifying based upon my belief. The prosecutor got so upset that - after having impeached her stringently on cross - he went and got a copy of the Virginia ethics rules and tried to get me to do a noisy withdrawal - I declined.

Third, it is not "conventional wisdom" that a defense attorney should "press the client hard for the truth to avoid being surprised at trial." At least it's not in any of the jurisdictions where I practice. Let's deconstruct that. To begin with, it is disingenuous to state that the reason for this rule is to avoid surprise at trial. Clients are, in the majority of cases, bright enough to tell you when they have confessed, who else is involved, and what evidence the officer took from their person, car, or home. That eliminates 95% of the chance that surprise involving major evidence will occur. The standard we all claim to believe in is beyond a reasonable doubt and the burden of proof lies with the prosecution. Why then must I know the "truth" from my client? The only reason I can think of is to limit my options while defending him. It keeps me from raising that reasonable explanation which the prosecutor has not excluded but which I know is not true. In other words assume there is an equal chance that my client has committed the robbery or that the kid across the street did. I have interrogated my client until he tells me that he did it. The prosecutor, grudgingly, gives me the information that the other kid was the person first suspected but he was dropped for some reason I consider (and think a jury will consider) non-dispositive. Of course, the prosecutor does not call the other suspect to the stand because the other suspect proves no element of his case and I cannot call the other suspect to the stand. Although there is a reasonable explanation which has not been excluded by the prosecution the jury will never hear of it.

My opinion? This is the point where ethics and malpractice part ways. It may or may not be "ethical" to act in this manner but it damn sure is malpractice. Thru my actions I have lessened the prosecutions burden of proof considerably and quite possibly condemned my client to imprisonment which he should not have suffered.

** Yes, although I have not checked it, I am quite sure this is not the proper blue-book format. One of the joys of being a trial lawyer rather than a professor or student is that I only have to worry about whether the information is conveyed not whether commas are in the right place or the right section of the citation is italicized.

25 June 2003

It's a bad day for the Defense when the best you can do is call an expert witness who confirms that the Defendant's actions caused the victim's death and the best thing he can actually say is that the victim probably didn't regain conciousness before he died.


24 June 2003

Life as a Criminal Lawyer:


The highpoint of the day was when I drive off to a rural county where the prosecutor and lead Detective - all too happily - show me tape after tape after tape of my hapless client dealing drugs to an undercover informant. This is followed by a hour long trip out to an even more rural regional jail in a city a third of the way across the Commonwealth, [ . . . privileged conversation with client . . . ], and a looooong trip back.


My client had been accepted into three drug treatment programs; two were lock-in and one was an intensive on-the-street program. The recommended sentence range was 9 months to 2 years for felony petit larceny (actual max sentence was 5 years) Today was sentencing. I go up and am pointing out that a large portion of my client's record consists of only minor traffic violations.

Judge: "He has 5 theft type violations Mr. Lammers." (this is a very bad sign)

"Yes sir, and we all know that this is a fairly typical record for someone with a drug problem and he is currently serving 10 months for a previous felony conviction which is why we are asking you order him to be placed in a treatment program in lieu of a prison. He wants to clean himself up and return to live a life in which he can contribute to society. I know there's nothing spectacularly good in this report (pre-sentence report) but there is also nothing which is all that bad; this is a man who would be a perfect candidate for the Day Reporting Center which would allow him to return to his responsibilities, his job and contribute to society."

As I make the last statement the Judge looks up from his bench and shoots me a sly grin. He knows I'm playing to what I think are his leanings; I'm not hitting him with the terrible breaks etc. in my client's life which I don't think will have any impact on him or having the common-law wife up on the stand crying for him; I'm trying to sell the cost benefit analysis of paying to keep him in jail as opposed to curing him so he can go forth and sin no more (sinning being anything which costs the taxpayers money thru the judicial system).

When I finish, Client gets to make a statement before sentencing. Being fairly bright he makes a good short, heart-felt statement which meshes with what I have said in my argument.

Then the judge sentences him to 5 years with 4 years suspended to be followed by one six month lock in drug treatment program to be followed by another six month lock in drug program. I walk back into lockup with my client to talk to him. [ . . . . section deleted because of privilege . . . . ] Then I go out into the hall to talk with his girlfriend/fiance/common-law wife. She had not heard the entire sentence and goes into shock when she realizes he got two years.

Then I go back into court and ask to have the case called again. I point out to the Judge that he did not say whether the time was to run concurrent or consecutive and ask him to run the sentence concurrent with the one he is already serving since they are similar in nature and derived from the same root cause which will be better served thru the programs rather than the prison.

Judge (showing me his yellow pad): "Mr. Lammers, last night when I was looking at the report I noted that I thought a proper disposition was 2 years and then a six month drug treatment program. I changed it to the current sentence after your argument. I am not inclined to lessen the sentence any further. Sentence to run consecutive."

[ . . . short privileged conversation with client . . . ]

Back out in the hall fiance confronts me and is not happy. The gist of the conversation can be summed up in the sentences she starts the conversation with: "I told him he should have hired someone else. That sentence is worse than any sentence any of his other lawyers got him. Why did he get that sentence and the white guy (apparently someone sentenced when I was not in the courtroom) got probation? After a little give and take (dealing with irate family members is a survival skill one must develop as a defense lawyer) she walks away. I go into a conference room to fill out some paperwork for the court and she reappears. Now she has transferred her unhappiness from me to the judge and spends 15 minutes talking to me about how she can register her displeasure without being held in contempt.

Late today she calls me and leaves a voicemail asking if she can retain me. Not sure what that's about yet - I'll have to return her call wednesday.


Fake Gun

In Tacoma a prisoner used a fake gun to escape the courthouse:
"It was made of cardboard from the backing of legal pads, stuffed with toilet paper and covered with newspaper blackened with ink from a ballpoint pen."

That took a lot of time and effort. Question #1: Why was it never found in his cell? Question #2: Do they not search prisoners? After all that is a pretty bulky item; even a pat down before transporting to the courthouse should have found it.


This is unusual. Usually prosecutors pile on charges rather than back away because their might be some overlap in them.

Unfortunately, the article is just to vague to understand exactly what is happening.


A parent's internet nightmare brought to life. How this guy only got 7 years is beyond me.


Be warned - New York has now made it illegal to put video cameras in your neighbors' houses and tape them without their knowledge. Apparently, up to now you could only get a trespass charge. Just in case anybody actually needed this information.


23 June 2003

Don't commit white collar crime in Egypt.


She hit a homeless man, carried him home on her car, parked in the garage and left him there to die on top of the car. Then she and some friends hid the body.
"[F]our months later, when a tipster said Mallard talked about the incident at a party.

The woman said they were discussing who would be the designated driver, because some in the group had been drinking, and that Mallard said she couldn't use her car, police said. The woman recalled that Mallard giggled when she said "I hit this white man," according to the police report.

The woman said Mallard told her she "was messed up" on ecstasy pills and drunk. Mallard and her boyfriend later went into the garage to see if the man was dead, but he was alive and even asked for help, the woman told police. "
This is in Texas - why are they even bothering with a trial? Guilty with aggravating factors.


This editorial is not happy about the media coverage of criminal cases. However, this is not only an American problem. In Jordan they are also concerned over the problem of the interaction of the media and the courts. Of course, in the kingdom they can write laws to restrict this.


There is a "gang database" in Virginia but apparently it is not used often.


Sometimes overzealous enforcement of the law leads to a good result:

A silly enforcement against a kid's lemonade stand for not having a business license leads to television appearances, money for college, and (most important to her) more money from sales.


Some people don't believe that they have to pay taxes:
In interviews with the news media, Mr. Simkanin and other business owners bragged about not paying taxes for as long as 22 years. They cited the lack of action against them as proof that the tax laws are a hoax.
However, Mr. Simkanin wasn't satisfied with that alone; he made sure the tax officials knew what would happen to them if they enforced the tax code:
At one of Mr. Simkanin's Web sites, www.arrowplastics.net, he has posted a warning that "public officials can and often do make the fatal mistake of attempting to harm the servants of God (Exodus 14:9) and inasmuch as the servants of God are required by Ezekiel 3:18-19 to warn the wicked, I, a Christian, do hereby issue this proclamation." He has warned that any government officials who move against him will be consumed by fire.
Still, for some reason the IRS decided to go after him.


Reworked my blog list yesterday. I ranked certain blawgs/blogs. There was no method to the madness. I just shot from the hip based on my longer term impression. If I'd done it next Tuesday the rankings would likely have been entirely different As a matter of fact they will probably change as the Summer progresses because I doubt the law school blawgs will have many posts and I'm sure I'll find new blogs. Within the "Top #" sections I did not try to figure out exactly who's first and who's eighth - I just filled in the number of blogs.

I've also added several new sites so take a glance and see if there's anything new you might be interested in.


22 June 2003

Before and after police take you down while you are in the middle of the abduction of a child. You do not get that messed up by simply being arrested. I suspect his head bounced off the floor a couple times. And it couldn't have happened to a nicer guy.


Highlights in a Criminal Lawyer's Week:

4 clients in General District Court. Two go as they typically would. One client has been in jail waiting for another State to extradite her for 30 days. Per normal experience, I tell her that it is 90% likely that she will be released (she asked). Of course, this is the one case wherein the judge actually grants the prosecution 2 more weeks (their excuse is that they had not moved to nolle prosequi a traffic ticket and maybe that's the reason the other State hasn't come). The client is very unhappy and will not talk to me after the hearing.

Later that day a client with two felonies and a misdemeanor has not been shipped to the courthouse by the jail. When I check, he has bonded out and never bothered to contact me. He never came to court so the judge issued a capias and set another date a month out (assuming he's picked up).

2 clients in General District Court in a smaller county. One case is dropped due to some technical difficulties in the prosecution's case. The other case is a DUI with an 80+ year old lady with a DUI charge and a civil charge of refusing to take the breath test. The Trooper tells me that she ran two cars off the road before she came to a stop and that she told him the reason she was driving was to go buy more beer. I work it out so that her DUI is dropped but she has to give up her license for a year. The most interesting part of the day was watching the prosecutor running between Circuit Court and General District Court (most of the time you only see defense attornies doing this). He's the single part-time prosecutor in the county and somehow the Judges scheduled both courts to be open at exactly the same time. While waiting for him to come to General District Court, I went over to the Circuit Court where they were holding pre-trials for what seemed like half the county (they had just busted a large, family drug ring). While sitting there I am assigned a client who is charged with 4 counts of distribution of cocaine. The judge made it very clear that if the charges were not handled thru guilty pleas there will be jury trials for the defendants.

A client who had been released after I got his felonies reduced to misdemeanors and the prosecutor to agree to time served (he had been off for several months being restored at the State mental institution) was required by the judge to get a HIV test and come back to court. On this date he failed to return for the second time and the judge issued a capias.

I go to the Richmond jail to visit a client and while I'm waiting prisoner after prisoner walks by asking if I'm a "paid lawyer" (not a Richmond Public Defender). I hand out about eight cards.

A client who had robbed the fast food resteraunt he worked at with a shotgun was sentenced to 22 years. This means the 18 year old kid will get out of jail when he is 40. The appeal will start shortly.

A client is in front of the General District Court on a capias for not coming to court on a prior date. When the client says he couldn't get a ride to the court on that day the judge asks why he didn't walk to court. After the judge is finished (but before sentencing), I point out that I live 5 minutes from where he lived and it takes me half a hour to drive to court on a highway that has a 65mph speed limit. The judge lectured me for pointing that out but he only sentenced the client to 5 days so it seemed to do some good.

Then I jump in my car and drive to another county's courthouse just in time for a client not to show up for his court date and get a capias. Then I have to handle a case wherein a merchant is using a criminal charge in order to get the prosecutor to be his bill collector. My client pays off the bounced check and the charge goes away.

Note: Every single one of the clients who did not show for court was a court appointed client; I find that about 10% of court appointed clients who are on the street do not show for court.


21 June 2003

This has got to be a joke. RICO against the Church? Thankfully, I doubt any political appointee is suicidal enough to follow this course.

At first, I started to write a massive rant about the entire situation but since I am trying to keep this blawg about criminal law as much as possible I have chosen to pass except for this:

Faced with a choice between the Church, including the many failures of its human members, and those who have been attacking the Church just a little too gleefully and greedily, I choose the Church.


When the red herrings are ignored this opinion boils down to what I believe is supposed to be an argument for keeping the Malvo case in Fairfax??? The stuff about juries is incomplete and misleading (although it would take at least a 5-10 page article to explain the evolution of the jury well so perhaps this is forgivable). Then after a paragraph on venue change it goes on to a number of other remedies which have been tried without spectacular success (and are not even being suggested in this case). His one paragraph on change of venue:
Some courts have granted changes of venue. In Timothy McVeigh's case, for example, the trial was moved from Oklahoma City, where many prospective jurors knew victims of the 1995 bombing of a federal office building, to Denver. A change of venue can avoid the worst excesses of mob mentality in a community victimized by the perpetrator of a crime, but in today's information age it does not come close to guaranteeing an "untainted" jury pool.
And at the end he offers his "solution:"
How then should the courts ensure fairness in the sniper cases and other high-profile criminal trials? In selecting a jury, the judge should ask each prospective juror, "Have you heard or seen something about this case?" If the prospective juror answers yes, the judge should then ask, "Given what you have heard and seen, can you give the defendant(s) a fair trial?" If the prospective juror answers yes, the judge should trust the truthfulness of the response and seat the juror.
Has this man ever tried a jury trial? Jurors who want to convict your client will lie; others will not even realize their bias. Anyone who works in the courts hears the stories about the guy who went home and bragged to his friends that he got on the jury so now he can make sure that bastard fries or the lady who did not disclose she is the Aunt of one of the victims (and these are cases where it was caught before the trial proper started).

Change of venue is the best way to guard against these events. He's right; there is absolutely no way that you can guarantee there will be no bias (the test is jury bias - not taint). Nonetheless, if you moved this case to Roanoke (randomly chosen example) you are far less likely to run into someone who felt directly threatened and you don't run into relatives, friends or friends of friends (at least not many). People would still know but they will not feel directly involved and a fair trial is much more likely. The best solution for this case is to move it to a jurisdiction which was not in proximity too the threat and allow an indepth voir dire unlike Virginia's usual truncated mass voir dire. It will at least guarantee a fair trial. The result will probably be the same but at least we will be certain it was reached fairly.


A puff piece about Bob Beasley running unopposed for reelection as Commonwealth Attorney in Powhatan. Mr. Beasley's a good prosecutor and deserves to be reelected.
Beasley said Powhatan and Hanover Counties are known for tougher sentences in jury trials than Chesterfield County. For example, Beasley said some defendants blame their attorneys for their harsher sentence for a crime in Powhatan than they received for the same crime in Chesterfield. "It’s not their attorney’s fault," he said.
Gotta keep ahold of that quote just in case one of my clients ever gets nuked out there.


Recall that on 27 March 2003 - 8:43 - I expressed my shock that prosecutorial misconduct in a case out of Powhatan was so bad that the 4th Circuit had upheld a federal habeus.

Bob Beasley, who was not the Commonwealth Attorney when this case was tried, got this whole thing dumped in his lap. He has decided not to retry the case.
Powhatan County Commonwealth's Attorney Robert Beasley said the main reason he decided against another trial for Monroe was lack of support from the family of the victim.

"I think that after 11 years of constant litigation, the Burde family wants to put this tragic episode behind them and move on with their lives," Beasley said.

Beasley said another factor in the decision was the unavailability of some trial witnesses who have moved out of state.
I can't blame him; I know I wouldn't want to have to put a case that big back together 7 years later. Especially when the 4th Circuit has already said nice things such as:
In March of 1992, wealthy art collector and notorious philanderer Roger de la Burde died from a single gunshot wound to the head. Following a high- profile trial in Powhatan County, Virginia, his longtime girlfriend Beverly Monroe was convicted of his murder. Monroe later discovered a wealth of exculpatory evidence that the prosecution had suppressed, including impeachment material, leads implicating other suspects, official documents labeling Burde's death a suicide, and statements suggesting that Burde may have been suicidal. On the basis of this new information, Monroe claimed that the prosecution had violated her due process rights, pursuant to the principles established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

After unsuccessful state court proceedings, Monroe petitioned for a writ of habeas corpus in the Eastern District of Virginia. Following discovery in the federal proceedings, the district court granted the writ, concluding that the prosecution had suppressed material, exculpatory evidence. Monroe v. Angelone, No. 3:98CV254, Memorandum Opinion (E.D.Va. Mar. 28, 2002) (the "Habeas Opinion"). The Commonwealth has appealed the court's award of habeas corpus relief, and Monroe has cross-appealed, challenging the court's conclusion that she procedurally defaulted certain aspects of her Brady claim. Because the Brady evidence on which the court relied is sufficient to warrant its award of habeas corpus relief, we affirm without deciding the procedural default issue.

Governor Warner is going to have to decide whether to send 20 of the 27 inmates on Virginia's death row to their death after having been convicted using invalid jury instructions or ordering them back into court for resentencing.

I don't know all the rules in capital cases (they are definitely different than regular felonies) but I think the 21 day rule may render this a moot point. No jurisdiction exists in any court because 21 days has passed. Of course, there is always the habeus option or the Governor could commit political suicide and commute all these setences to life without parole.


I spent 6 years in the Army as an Interrogator. While we were being trained one of us asked the obvious question: "Why don't we use polygraph machines?" The instructor's answer was short and to the point: "Because they don't work."

As I've gone along, I've come to the conclusion that they are great tools in an interrogation but that they don't actually tell you anything useful. And I'm not alone in this opinion:
Jeffrey Nance, a former undercover cop and author of "Conquering Deception," which examines different ways of detecting lies in everyday life, prefers to bypass the question of scientific accuracy and just think of lie detectors as interrogation tools.

"I don't think there's a foolproof way to tell if a person is lying or not," Nance told Courttv.com. "There may be people who don't like me saying that but it's the truth."

"It's the fear of the machine that gives it its greatest power," he said. "Even before they get on the machine they may give up information just because [they are afraid] the machine will show that they've lied. And nobody wants to be a liar."
This comes from an article about the latest and greatest bit of quackery which has been foisted upon law enforcement - the computer voice stress analyzer.
Approximately 1,200 law enforcement agencies use the CVSA, and supporters say that its convenience and accuracy will lead more departments to let their polygraphs, the more well-known truth verifier, start collecting dust.

But not everyone is enthusiastic about it. In at least a few high-profile cases, the device has appeared to be wrong. And a number of lawyers, civilians and scientists say the CVSA has no scientific validity.

"It's basically a Ouija board," said Nevada lawyer Ian Christopherson, who successfully defended a juvenile probation officer against a rape charge prosecuted largely on the basis of a voice stress test.
The problem isn't that police use this thing (although I would be irked if my tax dollars were spent equipping the local police with them); the problem is when local police believe in them and make decisions which are based on the machine stating that someone is lying.

And of course there are other machines - past, present, and future - which will be used to try and predict truthfulness with 100% accuracy. We know polygraphs fail this test. "Brain Fingerprinting" has potential but it can only tell if something has been seen before. And "Brain Imaging" is incredibly expensive and appears, so far to only reach 85% accuracy.


An Article discussing the spread of DNA testing:
While 26 states require DNA sampling of all convicted felons, some states have already lowered the hurdle to putting someone's genetic blueprint on file. This year Virginia began collecting DNA samples from anyone arrested for a violent felony, making it the first state to begin mandatory testing so early in the legal process.

Last year, Texas began testing certain repeat offenders once they are indicted, a step just beyond arrest. Louisiana has similar arrestee legislation on the books, but staffing and financial concerns have kept the process on hold.
I am waiting for the first time when one of these pre-conviction tests leads to an officer using the DNA to get a cold hit and then the Defendant being found not guilty so that the DNA should be destroyed. But, of course, by that time the djin is out of the bottle and the Defendant is charged with that B&E from 4 years ago where he cut himself breaking the window. Not being precognitive I don't know exactly how the Appellate Courts will handle that but I would hazard a guess that the opinion will include words like "good faith," inevitable discovery," and "harmless error."


When does six years behind bars not mean six years behind bars? When the legislature passes a law allowing you to be put in civil commitment after you have completed your sentence. Funny, they still look like bars to me.

If the Legislature wants to punish further or even to protect the citizenry by keeping a particular class off the streets it should do it honestly by increasing the punishment attached to the crime. It shouldn't be allowed to pass ex post facto laws which will keep someone imprisoned longer than his sentence.


Be advised - In Virginia if you use a "Smart Tag" rather than paying cash at toll booths VDOT and the police will violate your right to privacy. They won't even warn you about this as you apply for and get the tag. VDOT will tell the police where you have been at their discretion.

I wish I could say that I am shocked by this but I cannot. I long ago gave up on any belief that there is anything but a tattered remnant left of the federal constitutional right against search and seizure. And the Courts Appellate of Virginia refuse to enforce any constitutional rights not forced upon them by the federal courts thru the federal constitution. If they would enforce the Virginia Constitution this sort of activity would probably be banned by Art. 1 sec. 1, under which "[a]rbitrary and capricious powers are contrary to the genius of our government, are never favored, and seldom granted." Taylor v. Smith, 140 Va. 217, 124 S.E. 259 (1924).


An editorial opining against the Virginia 21 day standard:
"How tough is the Virginia standard? Ridiculously tough."
And the sad thing is that it's pretty much dead on.


This editorial misses the point. While I agree that the gun seller should probably be brought to task for this weapon (remember this is the store that "lost" 100 weapons a year) the manufacturer should be immune. What the article fails to realize (I hope not purposefully overlook) is that the point of all these cases is to hit as often and as hard as possible on as many fronts as possible with the eventual intent of badly harming the manufacturers who do not control the actions of others after the product is shipped and cannot possibly monitor the actions of every single retailer.

Even those who don't have an agenda are drawn to the manufacturer every single time because it has deeper pockets. The manufacturer is forced to defend nationwide and even if 99% of the cases are dismissed that's going to cost the innocent manufacturer a lot of money and could drive many out of business.


They're going to start advertising Exile again.


West Virginia is setting up a Mental Health Court. I assume this is going to run something like Drug Court and I think it is a good idea. I hope it is set up so it can handle dual track individuals. I get a lot of people with mild mental problems and drug problems. Trying to deal with one and not the other usually leads to failure. One of my clients was diagnosed with manic-depressant disorder and addiction to cocaine. He was taken into Drug Court but as soon as they got him off the crack he had what was described to me as "a full blown psychotic episode." They kicked him out of Drug Court (without sanctions) and the last time I saw him he was being held at a ward for seven days to ascertain his condition. As far as I know - and I strongly suspect this - he is back out on the street self medicating.


News of the legally very strange . .

A man in Henry County was driving nekkid down U.S. 58 without turning the lights of his truck on.

A couple in West Virginia was worried that if the husband was at home when welfare authorities came to check their house they might not be able to keep the children. Their solution? They dropped the 76 year old husband off in the forests of Tennessee to rough it for a week.


You'll recall that I was skeptical about the Capitol Police chief's attempt to extend the jurisdiction of his force into the entirety of D.C. and the surrounding Virginia and Maryland counties. But wait, there was more he also wanted 500 new officer and 300 new civilian employees. Congress asked the same question I did - what the heck for? They denied him the across the board.


One hopes that CPS has more evidence than just the kid's story. I've seen CPS taken in by a kid's story before and know that some of the more cunning know that they can call Protective Services if they are mad at their parents.


Sa'ad El-Amin

The judge in the El-Amin case is going to issue a written decision in his decision as to whether the prior plea agreement El-Amin signed and then invalidated can be brought before the jury as evidence.


In Jamaica thugs went thru an entire school looking for a witness to a murder.


Of course, the question in this case is: if the evidence was so minor and unimportant and it could not possibly make it into trial - then why wasn't it disclosed prior to the trial?

One of my professors in law school asserted that some officers did this sort of thing on purpose. They would not tell the prosecutor about evidence which they judged false and which might be used by the defense attorney. Thus the prosecutor would not disclose it to the defense attorney as required. After the trial - if the evidence ever saw the light of day - it would be dismissed because it wasn't developed enough to have have shifted the balance of the evidence. Of course, the damage is in the fact that the defense attornies did not have enough time to investigate and develop the evidence so that it could be introduced and make a difference.


Former judge Askew was thrown out by the Legislature, cited in a bar complaint, ran for office, the Bar agreed to continue her case until after she completed her run, and now is arguing her case. Personally, I think the Bar complaint really doesn't have merit but I'm not too happy that the Bar accomodated her either. Still, in the end I think she hurt herself. If she had had the hearing before the election date maybe she would have generated a lot of positive press when she cleared her name.


Another report that crime rates dropped. But it can't be because crime rates have actually dropped (that would be bad for the budget) it must be that "department resources [were] diverted to the sniper case and anti-terrorism initiatives."

This is the second time I've posted on this sort of trend but I have seen a number of articles and they all follow the same pattern: the article notes that crime statistics are down and then a law enforcement official gives a reason why it isn't actually true.


Here's someone who's really working hard for his client. It's a strech but at least the attorney's trying.


A Sheriff bumping heads with the Middlesex County Board of Supervisors over his use of deputies to set speed traps rather than patrol. The "grant" (no further explanation given) won't pay for anything but speed traps.


Life as a Commercial Vehicle Enforcement Officer. Bees?


Must be a slow news day when one of your lead news stories is that someone didn't show up for trial.


The sentencing of a man who claims he raped young women as part of satanic rituals is being put off while he is evaluated for mental problems.

Well, there are obviously some problems here but it sounds mostly like severe depression and that isn't going to stop a severe sentence from being handed down.

Must admit to not having a lot of sympathy here.


19 June 2003

Sorry the comment option went away. When it worked it worked well but when it didn't the site failed in its entirety. Happened three times = goes away.


Can a practicing Catholic become a federal judge?

You'll remember my prior concerns, in this post, that Senator Leahy was trying mightily to keep the fact that those beliefs which the Democrats are proscribing are core Catholic beliefs out of the committee. It wouldn't be good PR if the fact that active members of the largest denomination in the U.S. are going to be filibustered by Democrats because of their religious beliefs saw the light of day. This recieved further dicussion in Lex Communis on 12 June 2003 and 15 June 2003. There was also some discussion of this on Southern Appeal (do a page search for "Feingold").

Then I ran across this a couple days ago while reading about Judge Kuhl's hearing:
"I have no sympathy with Bob Jones' racially discriminatory policies or teaching with respect to other religions," she said. When she told Leahy that the fact that she was, like him, a Catholic, demonstrated that she could not approve of the school's disdain of other religions, Leahy snapped that it was inappropriate to talk of her religion or his.
Judge Kuhl is well respected and comes well reccomended. There is nothing which shows she will not follow constitutional interpretation handed down by the federal supreme court. Still, she's going to be filibustered.


Senator Hatch wants to destroy your computer. For downloading mp3's. It's like trying to kill a gnat with a nuke; actually, it's more like trying to nuke thousands of gnats. It would probably work. Senator Hatch would probably never get re-elected after he destroyed one of the most expensive items that tens of thousands of his constituents own but it would probably work.


The next time you hear a post-arrest press conference where prosecutors and the police declare their case a slam dunk, think of Joe Moore. The next time you think that monstrous injustice is a thing of the past in our legal system, think of the Tulia Twelve.

El-Amin will have to face his day in court in Richmond. I think the judge offered a reasonable compromise but I also agree with the defense that if El-Amin has any chance he has to have a number of jurors from Richmond.


President Bush isuued what amounts to a federal ban on federal agents admitting that they used racial profiling (except with Arabs). Will they actually stop using race as a proxy? Unlikely. The problem, of course, is that because certain groups compromise a significant portion of the urban poor they have a significant portion of criminals.** So in times past the Irish were targeted (where do you think the term "paddy wagon" came from?). Currently, when law enforcement is focused on who it thinks is likely to be breaking the law it looks to those who occupy the social positions that Irish and Italians occupied in the past.

**Crime tends to rise out of impoverished neighborhoods - I know - you're shocked by the revelation.


Under the "You Learn Something New Every Day" catagory: The SODDI defense.


I tire of pro and anti-death penalty arguments rather quickly. While some are more clever than this, arguments for and against the death penalty will almost always boil down to a purely philosophical or theological point of view.

This is a poor argument in favor of capital punishment. Yes there is a social cost in terms of deaths from all activities but the failure of his argument is that other activities do not actively seek to kill someone and it is unlikely that the per capita death toll in other socially acceptable activities rises to the level that even a few innocent deaths on old sparky. The second argument - that innocents may die if we don't kill him before he kills again - is actually pretty funny. How often is it that someone from townhall.com argues that we should be concerned about those poor souls who are imprisoned (we can't possibly let other vicious criminal elements prey on them while they are in prison)? And the argument that we should kill him because if he escapes he might kill someone applies equally to anyone who gets a life sentence or a lot of time in prison whether it be from murder or rape or multiple bank robberies or . . . Almost all of these people have shown the ability to use violence and quite often it is just by the grace of God that their victim survived at least a year and a day.


Further proof that Democrats just don't get the humor thing. Personally, I don't think he'd get nominated; they didn't get him a membership in the Federalist Society.


An article urging the federal supreme court to take up and overturn the decision in which the D.C. Federal Appellate Court said the government can secretly arrest foreigners.
Judicial oversight is supposed to act as a check on an executive branch that otherwise might gather too much power, especially in times of national emergency. The threat of abuse grows if government operates secretly, beyond even the constraining influence of public opinion.
Sadly, I find myself agreeing with this. I voted for Bush (and will again) but a number of Justice's policies under Ashcroft are just beyond the pale. We're supposed to be the folks who support liberty dammit; disappearing people just does not mesh with that. I might even buy an argument that non-citizens do not require the same level of evidentiary proof before they can be held (they are, after all, in our country at our discretion) but there's no way anyone should be held without some sort of showing that there is cause.


Good News? The Missouri Supreme Court has just validated your right to steal someone's wife or husband.


The first question which pops into my mind is why law enforcement has a military APC?

It's sad when relations between a police department and the citizens it is supposed to protect deteriorates to this point. I know it would feel an awful lot like an occupying force rather than "Protect and Serve" if I saw this rolling down my street. Yes, I know there was a riot going on and the police had to do something but sending in the tanks?

Hopefully, peace will return and the issues will be addressed so that this doesn't happen again. (Yes, I know it's improbable but we can all hope)


17 June 2003

I got appointed to represent one of these folks so I won't comment any further.


These obviously mistreated children are being stalked by DSS because their parents won't force them to take an academic test.
Both sides agree that the children are in no way abused mentally, physically, sexually or emotionally, but legal custody of the children was taken from Kim and George Bryant in December 2001. The children will remain under the legal custody of DSS until their 16th birthdays.

"We have legal custody of the children and we will do with them as we see fit," DSS worker Susan Etscovitz told the Bryants in their Gale Street home. "They are minors and they do what we tell them to do."
The Gestapo couldn't have put it any better.

DSS even tried what basically amounted to a raid to try and force the test upon the family.

Do they not have children who actually need help? They should be ashamed.


The task force studying Virginia's 21 day rule is considering dropping the 21 days in favor of a convoluted process which goes to the Court of Appeals, then back to the Circuit Court, then back to the Court of Appeals. Interesting but it doesn't sound too practicable. I'll be interested to see what they finally come up with.


"Lawyers for sniper suspect John Allen Muhammad asked yesterday for a trial by judge instead of trial by jury."
That's pretty desperate. But I guess this may be one of those rare occasions when a judge might be less likely to convict than a jury. Still, since the prosecutor in Virginia has the right to a jury trial I think it's a moot point. Maybe they did it to strengthen the attempt to change venue.


The government can sign over property to an entity formed by the government and ban people it does not like from being there(we're talking public roads here folks). I did not think that the freedom of expression challenge to this which reached the federal supreme court would win because it was an ill fit on the Defendant in the case. It will be interesting what will be challenged next. Freedom to associate? Freedom to travel? Vagueness? All seem to be stronger challenges.


15 June 2003

Thank you for your support. These are the blogs/blawgs, so far this month, whence came the most forwards to my site (if it ain't linked it's because it's on my page):

1} Freespace

2} SW Virginia law blog

3} The Curmudgeonly Clerk

4} Jurist

5} Detod

6} Lex Communis

7} How Appealing

8} Screaming Bean (with a cool new look)

9} Richardz Blog

10} The Southern California Law Blog

The most common searches which hit my blawg were:

1 ~ Wierd Car Insurance Fraud Facts

2 ~ Ryan Cappelletty

3 ~ "john lammers" and newspaper


According to memeufacture these are the 10 most popular blawgs:

1 : How Appealing

2 : SCOTUSBlog

3 : Southern Appeal

4 : explodedlibrary.info

5 : FurdLog: Frank Field's Weblog

6 : tins ::: Rick Klau's weblog

7 : Inter Alia

8 : Bag and Baggage - Denise Howell, appellate and intellectual property lawyer

9 : Ernie the Attorney

10 : Lawrence Lessig

As pointed out by SW Virginia Law Blog, a Circuit Court judge has issued a show cause on two prosecutors because the prosecutors asked for all jury trials on May 23, the day the cases were scheduled for bench trials by Circuit Court Judge B.A. Davis III (a retired judge who was substituting) and releasing all the subpoenaed witnesses before the court date. According to this article (4th story down): "BOTH HAVE STATED THEY WILL ALWAYS REQUEST JURY TRIALS WHEN DAVIS IS PRESIDING."

If anyone has any information on the story behind this story I ask you to drop me a line.


Traffic Travesties:

Anyone who drives I-95 realizes that everyone speeds on that highway and that the road is clearly safe at a rate of speed far above that which is posted. Still that doesn't spoil these officers' fun as they take to the sky to enforce arbitrary malum prohibitum laws. "'It's like shooting fish in a barrel,' says Stiles, a smile creasing his face."

Latinos are lured here to do jobs we won't and then we refuse to give them the license to drive which is needed in the U.S. They have no choice but to drive and in turn get convicted - time and again - for driving without a license. “'They can’t get licenses, but whether we are really deterring them (from driving) is another question,' said Winchester’s interim city attorney, Elizabeth Muldowney. 'It’s just that work and family take precedence.'" Of course, this isn't an issue only for Latinos but they do seem to get hit harder.

This officer has the most DUI arrests for the last year and has been caught lying about the number of DUI arrests he has made in the past. But we should believe him when he claims "he doesn't hang out near bars, as some have alleged." Note how later in the article it talks about how he started an organization which put up signs in areas wherein DUI's are prone to occur and how during the stop several of those signs were passed. Hmmm . . . Must have just been a coincidence that night.