30 June 2004

Hunting the Cunning Counseloris Rex

One of the joys of being an attorney is the constant flow of jokes which are directed at you. It's so much fun being told about the professional courtesy we receive from vipers and sharks and that a hundred dead lawyers is "a good beginning."

Still, every once in a while one is cute enough to forward. I got this one from an old military buddy:

Government Department of Fish and "WildLife" Sec. 1200

1. Any person with a valid hunting license may harvest attorneys.

2. Taking of attorneys with traps or deadfalls is permitted. The use of currency as bait is prohibited.

3. Killing of attorneys with a vehicle is prohibited. If accidentally struck, remove dead attorney to roadside and proceed to nearest car wash.

4. It is unlawful to chase, herd, or harvest attorneys from a snow machine, helicopter, or aircraft.

5. It shall be unlawful to shout "whiplash", "ambulance", or "free Perrier" for the purpose of trapping attorneys.

6. It shall be unlawful to hunt attorneys within 100 yards of BMW dealerships.

7. It shall be unlawful to hunt attorneys within 200 yards of courtrooms, law libraries, whorehouses, health spas, gay bars, ambulances, or hospitals.

8. If an attorney is elected to government office, it shall be a felony to hunt, "entrap", or possess it.

9. Stuffed or mounted attorneys must have a state health department inspection for rabies and vermin.

10. It shall be illegal for a hunter to disguise himself as a reporter, drug dealer, pimp, female legal clerk, sheep, accident victim, bookie, or tax accountant for the purpose of hunting attorneys.

(Maximum number of catches allowed per hunting season)

1. Yellow Bellied Sidewinder...........(2)
2. Two-faced Tort Feasor...............(1)
3. Back-stabbing Divorce Litigator.....(4)
4. Small-breasted Ball Buster..........(3)
(Female only)
5. Big-mouthed Pub Gut.................(2)
6. Honest Attorney.....................(0)
(On the Endangered Species List) (Illegal to hunt)
7. Cut-throat..........................(2)
8. Back-stabbing Whiner................(2)
9. Brown-nosed Judge Kisser............(2)
10. Silver-tongued Drug Defender.......($100 BOUNTY)

29 June 2004

Virginia-izing the Federal Sentencing Guidelines

In this op-ed a couple professors suggest changing the federal system to one which mirrors Virginia's sentencing guidelines.

In Virginia guidelines are entirely optional and judges can depart from them either up or down at whim. The judge must give a reason but the reasons given are often rather weak (usually because the same reason was already accounted for in the recommendation) and a departure from the voluntary guidelines cannot be appealed.

All that said, it is amazing how many of the judges actually stick within the guidelines. Of course, judges in Virginia are creatures of the Legislature, serving at its periodic whim. If the Legislature feels they have been going too far afield the next time they come up for election they might have to find a new job. This has some good effects in that judges will tend to follow legislatively mandated guidelines. It also has some bad effects as anyone who has watched judges looking over their shoulder whenever they are asked to rule on an issue which is hot with the Legislature (e.g. DUI interpretations and sentencings).

I'm not sure what incentive would cause federal judges to follow voluntary guidelines.

Lv Sentencing Law & Policy

Virginia Supreme Court 06/10 Charge Bargaining Not Vindictive

Barret v. Commonwealth - Subject: When a prosecutor brings extra charges after the Defense has successfully exercised its constitutional right to appeal one charge is that prosecutorial vindictiveness?

The Defendant succeeded in an appeal but the charge was returned for prosecution on a lesser included charge. Prior to the second trial the prosecution threatened to bring more charges if there was a not guilty plea. Thereafter, the prosecution brought the extra charge when negotiations for a plea were unsuccessful. Defendant moved to quash the indictment as punishment for the fact that she had succeeded in her exercise of her constitutional right to appeal.

The Court finds no direct connection between the successful appeal and the bringing of the new charge. Without a direct connection, there is no presumption of prosecutorial vindictiveness. Absent a presumption the Defendant must prove vindictiveness. The fact that the subsequent charge was not brought prior to the successful appeal is not proof that the prosecution is vindictive.

Comment: As far as it goes, this opinion appears correct. While we all know that but for the successful appeal the subsequent charge would never have been brought, it was not brought to punish the appeal. It was brought to punish the Defendant for exercising her constitutional right to plead not guilty.

This is what the judge in the Massachusetts federal sentencing guidelines case called “charge bargaining.” Most of the time this is accomplished by charging more felonies (and/or misdemeanors) than the prosecution is really interested in pursuing so that charges can be dropped in exchange for a guilty plea. A bright prosecutor can make his job easier by arranging several more charges than he ever intends to prove (although all colorable) and dropping all but one or two in order to get a plea; this is the intelligent way of doing charge bargaining because the Defendant is able to see what she is getting from the bargain - the more charges dropped the better.

The way it was done in this case is more heavy-handed, showing some lack of finesse. While not unheard of, when a prosecutor threatens to raise new charges unless you plead to the one it seldom makes the negotiation easier. To begin with it makes it harder to explain to the Defendant. A Defendant is almost always extremely focused on what is currently charged. Explaining to her that she must plead guilty or potential new charges might be filed often does not pierce this concentration and decisions are mostly made solely pursuant to the perceived danger rather than the potential danger. As well, the majority of the time I have seen this threat put out there it has not been followed through on (albeit, probably because the prosecutor is satisfied with the slamming my client got in the trial of the initial charge). So it can be hard to advise the client on the probability of the prosecutor following through on the threat.

Even on those occasions when I am absolutely convinced that the prosecutor will bring extra charges trying to get the client to understand is painful. If charges are going away the client gets it; if you are keeping charges from being brought the client only sees the charge in front of her and the fact that you are not getting that charge reduced or making it go away. More than once I’ve been told at this point how worthless I am and that a “paid attorney” would have done a better job. Once, having maneuvered to keep at least four new, easily-provable felonies from coming into play, my client’s aunt proclaimed in a stage whisper as she left the courtroom, “He’s worthless. He didn’t do anything for you.” Ggggrrrrrr.

This, of course, is a discussion of the tactics of charge bargaining, not the morality. While properly done charge bargaining makes life easier for everyone in the courtroom - the prosecutor, the Defense counsel, and probably even the Defendant - at its core it is an immoral practice. It denies the system the ability to function in the manner it is supposed to operate. The prosecutor should bring the charge(s) he believes appropriate from the beginning. Bringing charges without the intent to prosecute or threatening new charges that the prosecution had not initially intended to file is done with the sole purpose of pressuring the Defendant so that he will not exercise his right to put the prosecution to its proof. It’s wrong but courts allow it and even if they tried to intervene it would be extremely hard for a court to enforce a ban on charge bargaining. After all, how will the court know if a prosecutor is dropping a charge because he no longer believes it viable or because the Defendant will plead to one if the other is dropped? The judge may have a strong suspicion but unless the court is willing to engage in presumptions following certain activity (as this case illustrates it is not) there is no practical way of knowing. And, again, nobody really wants it to go away because well done charge bargaining makes the system run smoother.

28 June 2004

Why Chesterfield is Arrestafield

The county where I live and have my office is often called "Arrestafield." This article is an example of why: Chesterfield by itself almost has more DUI arrests than all the surrounding counties and cities combined (Hanover being the only one in the list which is not bordering Chesterfield).

27 June 2004

Va. Court of Appeals 06/25

English v. Commonwealth - Subject: Bounty hunters and the impersonation of police.

A bounty hunter may have the power to stop a car, ask about weapons, and identify the occupants. However, he cannot identify himself as an officer thru his words or a misleading badge and he cannot ask the driver to exit the car and inquire whether she has been drinking.

Smith v. Virginia - Subject: What must be done in order to preserve a trial judge's decision to allow the prosecutor to allow rebuttal testimony as to character.

The trial judge ruled that he would allow the prosecution to introduce rebuttal evidence if the Defense introduced evidence as to truthfulness and honesty. Because of this the Defense did not introduce the character evidence. Because the Defense did not introduce the character evidence the prosecution did not introduce the anti-character evidence. Without the prosecution's introduction of the evidence at trial there is nothing to appeal.

Comment: It makes a nice little circle doesn't it?

In all fairness, the prosecution probably should be allowed to enter evidence in rebuttal of any point which the Defense offers evidence. What is frustrating here is that the Curt of Appeals could have easily said that (in an even shorter opinion). Instead it ducks the question by not deciding whether the judge's decision was an error and placing an evidentiary introduction burden on the Defense if it wants to argue the judge's potential legal error.

New Links

You'll notice that I have added a number of new blogs to the right. In particular I want to recommend to you Sentencing Law and Policy and Tutissima Cassis.

Scalia's Ire Toward Breyer

From Blakely:

"The implausibility of JUSTICE BREYER’s contention that Apprendi is unfair to criminal defendants is exposed by the lineup of amici in this case. It is hard to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side. JUSTICE BREYER’s only authority asking that defendants be protected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor. See post, at 4–5 (citing Bibas, supra); Association of American Law Schools Directory of Law Teachers 2003–2004, p. 319."

As always there were plenty of quotable moments from Scalia but this is the one which tickled me.

26 June 2004

Blakely and Federal Sentencing Feeneyizing the Upward Departures

OMG . . . OMG . . . OMG . . . No More Upward Departures

When I screw up an analysis I really screw it up. In the immediate post below I stated that I didn't think that Blakely had much to do with the Massachusetts opinion and proceeded to analyze the opinion as either being correct or incorrect based up whether it could be characterized as changing a maximum allowable sentence or merely changing the minimum allowable sentence. I was wrong; Blakely is determinative.

How could I be wrong, you ask? Well, gentle readers, my only excuse is that I read the opinion at about 11 p.m. after several mind-numbing hours of traveling back and forth to some jail in the middle of nowhere in order to visit a federal client. I was tired and I read it fast. But today I was taking a break for lunch and I started to reread it with my brain half-engaged and OMG!!!

So here's my analysis of Blakely:

Legal Situation: Blakely pleads guilty to a charge for which the Washington State Legislature has set a 10 year maximum punishment. However, the Legislature has also enacted sentencing guidelines which set forth a range of punishment. The judge departs upward from these guidelines by finding an aggravating factor which had not been stipulated to by the Defendant and was not necessary for the conviction. A finding that the aggravating factor exists moved the sentencing guidelines upward but they were still within the ten year maximum.

Finding of the U.S. Supreme Court:

The maximum sentence is that which is set out by the guidelines not that which is stated to be the maximum under the actual statute for the crime.

Going back to Apprendi the Court stands by the principle that outside of the prior record the judge cannot find any factor which will increase a maximum sentence. Such factors can only be stipulated by the Defendant or found by the jury.
[T]he relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
Since the judge could not impose the sentence he did solely from the stipulations in the guilty plea the increased sentence is a violation of the Defendant's right to have all facts determinative of the maximum sentence decided by the jury.

The State seems to have argued along the lines of what I hypothesized while discussing the Massachusetts case below: that the fact upward departures occurred indicates that the guidelines actually only set mandatory minimums. The Court rejects this out of hand. As long as there is a range and the maximum changes due to factors neither stipulated to nor found by a jury the minimum is irrelevant.


Despite the gnashing of teeth and wailing on one side and the exuberant jubilance on the other this is not the death knell for the federal sentencing guidelines. It is a blow against uncertainty in the maximum sentence. I foresee three possible outcomes:

First, the guidelines could be revamped so that all they establish are mandatory minimums. I'm not an expert on the Sentencing Commission but hopefully it would not be able to undertake such a massive change without Congress being required to vote on it. I am doubtful that this could be gotten through both houses of Congress (at least if it's not attached as an amendment to the "Allow Motherless Orphan Babies to Have Milk" bill).

Second, it could lead to bifurcated hearings. The problem here is how unwieldy this would be in practice; with the guidelines as they are you might have to schedule longer for the sentencing hearing than the trial. It would also mean that prosecutors would have to be much more detailed in their indictment so that each and every element of the maximum sentence was included and could be proven. This system is doubtful because of its difficulty. One advantage of it is that it would probably do away with the one guideline abuse that bothers me the most: getting extra points for obstruction when you exercise your right to testify at your trial. Prosecutors cannot indict a future possibility and thus could not prove this unalleged element of the maximum sentence.

Third, is to adopt the method which the judge in Massachusetts chose to use (if you see that judge buying a lottery ticket make sure you listen for the number - he shows signs of precognition). Judges shall only sentence in the range determined by the base number as effected by the Defendant's prior record. This is what I foresee happening.

This option is what I meant by Feeneyizing upward departures. As we all know, downward departures have become (under Feeney) almost impossible to obtain. This ruling makes upward departures impossible to obtain. It makes the guidelines far more predictable and standardized.

Probable Effect: The second and third options above are not mutually exclusive. When the US Attorney really, really wants to get someone he could jump through all the hoops and bring a complex and fully laid out indictment alleging all the facts for the maximum sentence he wishes to have imposed. He would then ask for a bifurcated trial in order to prove all the allegations. The trial could go on forever but in the end he could get the massive sentence he desires.

More likely, under the third option prosecutors will go back to bringing multiple charges and proving them in order to get all the relevant factors which will boost the sentencing range (newer prosecutors seem to tend to only bring the conspiracy charge nowadays). They will also require a Defendant who enters a plea agreement or who wishes to get the third point of downward departure to stipulate to the facts as the prosecutor wants them presented to the judge.

Well, I could probably put much more in but poker calls . . .

25 June 2004

The Massachusetts Ruling that Federal Sentencing Guidelines are Unconstitutional

Well, I read Blakely last night and don’t think it changes much in the Massachusetts opinion. It doesn’t hurt the district court judge’s decision and its affirmation that the jury is the only body which can decide facts determinative of the maximum sentence is in the same vein as the trial judge. However, it doesn’t really reach the core matter which the trial judge’s opinion hinges on.

The Massachusetts Opinion:


This ruling does not find the entirety of the federal sentencing requirements unconstitutional. Under this finding the base number which is assigned to a crime and the considerations of prior record which effect it are still held to be constitutional. All other factors which a judge can find that would otherwise cause an increase in the maximum sentence after a finding of guilt are unconstitutional and cannot be applied. However, the opinion seems to leave those factors which mitigate a sentence in place because case law allows a judge to determine factors which determine minimum allowable sentences.

The Core of the Opinion:

At it’s core this opinion is very simple. It separates the theory of the sentencing guidelines from the reality of the sentencing requirements. The theory is that they are guidelines the judiciary can depart from them in appropriate cases as determined by the judge. The reality is that they are requirements which were set in stone until the Feeney Amendment, when they became cast in steel. It is this dichotomy upon which the entire argument rises or falls.

Apprendi, Ring, and now Blakely do not care much about theory; rather, they are concerned with effect. The sentencing requirements are fixed such that, for all practical purposes, the judge cannot determine the sentence within the statutorily set out limit but only within the allowed sentencing range on the grid. Thus, the statutory limit has been superceded by the guideline range and it determines the maximum sentence. This having occurred Apprendi and its progeny attach to the sentencing requirements and there can be no increase to the maximum punishment range by judicial evidentiary findings except those proceeding from the Defendant’s prior record.

It’s a well argued thesis based upon the realities of the modern federal courthouse.


The judge goes on to make his disagreement with Mistretta fairly plain and seems to be of the opinion that post-Feeney, the constitutionality of the shift of power from the judiciary to the executive branch embodied in the guidelines badly needs to be reviewed by the Supreme Court with a firm eye on the reality of the criminal justice system. There is a long section discussing whether the Sentencing Commission does or should have the powers granted it by Congress (Congress cannot delegate powers not allotted to it under the constitution). Much of this could have been shorn away to make his actual argument stronger.

ETC. Relevant:

Three portions of the bric-a-brac seem relevant.

First, the judge opines that the federal sentencing requirements strongly detract from the right to a jury trial (the important underlying consideration in Apprendi analysis).

Second, the judge discusses why he raises this argument sua sponte. He is convinced that under the current system Defendants dare not raise such claims because they must cowtow to the prosecution in order to gain any crumbs the prosecutor might throw their way.

Third, he discusses options to remedy the constitutional error. The first is bifurcated jury trials wherein the sentencing factors are decided by the jury in the post conviction session. The second, which the judge adopts, is to sentence only based upon the points for the offense as modified by the Defendant’s prior record.



As much as I like the opinion and believe the federal sentencing guidelines to be plainly constitutionally wrong I doubt the opinion’s viability. This is a very close issue but I see two problems with the Court’s analysis.

(1) The trial court seems to assume that Feeney and the sentencing requirements set an equal barrier to departures upward and downward; one would hope for such logical consistency. Nevertheless, if Feeney set a concrete floor but left a ceiling made of straw this opinion falters because courts can decide factors which determine minimum punishments. Although I’ve not researched the matter, I’d bet good money that upward departures have survived at a much higher rate and received more favorable appellate language. This is just a reality of any appellate court handling criminal appeals. All departures may start with the same standard but when a trial judge departs upward for someone who has been convicted of three sexual torture killings the appellate court is going to have to be dragged kicking and screaming to a reversal; if it can find a reason to uphold the trial court it will. On the other hand, when someone is convicted of dealing in crack cocaine and the judge departs downward the appellate court is not going to be as inclined to defer to the trial court. This is just human nature and (lest we forget) judges are human too.

I know that upward departures occur. Within the last few months an employee of the City of Richmond received an upward departure for stealing from the city (the feds seem to charge one member or another of the Richmond government every three months or so). So I’m not sure that the maximum punishment argument will stand up to scrutiny.

(2) I’m not sure the appellate courts will recognize the trial judge’s ability to raise this issue sua sponte. As a matter of fact, I think there is a strong chance that the appellate court will use this as an excuse to punt and refuse to accept the trial judge’s opinion because it was not something argued in a case. The trial court shows a reality based belief that the system will not allow defendants to make this argument. However, appellate courts are one step away from the trail court experience and seem to most often consist of those who have had no experience at all in the criminal justice system (or at least no Defense experience). Without any real world knowledge, the view from the appellate bench does not always represent reality.


The potential out of this opinion depends on how strong the courts believe the jury system should be. The common moving force behind the decisions in Apprendi, Ring, and Blakely is the primacy of the jury. If viewed through this lens the sentencing requirements are a disaster which foreclose a jury for all but a desperate or stubborn few. Assuming that 95% of the cases stay underneath the maximum set by the guidelines can that 5% departure upward be enough to salvage the constitutionality of the entire system? If we truly believed in jury trials it should not.


That’s my snapshot view of a 176 page decision. Much is missing and/or extremely simplified. I strongly recommend reading the section which outlines how the federal judicial system actually works and the Apprendi argument.

[Addendum] Per the helpful comment below, I quote this from an 8th Circuit dissent:
Since May of 2000, the government appealed twenty-five cases in which the district court reduced the defendant’s sentence. Of those, our court reversed the district court twenty-three times, and affirmed only twice.

When it comes to cases in which the district court increased the defendant’s sentence, one would expect to see a similar pattern of reversals, inasmuch as we have employed similar standards of review for both upward and downward adjustments and departures. Unfortunately, that is not the case. Since May of 2000, we were presented with appeals from forty-six upward departures. Of those, we reversed only two, and affirmed the other forty-four.

In other words, during the same three year period that our court was consistently reversing shorter sentences, we were consistently affirming longer ones. It is difficult for me to reconcile this contrast, and I am deeply concerned with the trend and the message it sends to district courts–that more severe sentences are far more likely to withstand appellate review.
If that's the view from the 8th I can only imagine the 4th or 5th. That would seem to confirm my worries that courts have already refused to impose the same standard to an upward departure as they have a downward.

24 June 2004

That Pesky Supreme Court

I know I promised more on the case stating that the federal sentencing requirement are unconstitutional but then the pesky Supreme Court had to go and decide Blakely. I need to read and digest it so I can see how it effects the district court's reasoning.

Assuming, without promising, that my visit with my federal client goes well and I am back home before 8 p.m. I will try to get something together to post for tomorrow morning.

My Cat's Opinion of the Decision

My cat has weighed in on what he thinks of the Massachusetts district court judge's opinion ruling the federal sentencing requirements unconstitutional.

First, he thinks it tastes great:

And he went back for seconds

So he also thinks it's less filling.

More on my opinion later.

Critiqued by High Schoolers

A while back I had a hearing while a class of high-school students watched (see Wednesday here). Afterward I stayed to talk with the class along with the prosecutor, the judge, and a couple other defense attorneys.

Yesterday I got a stack of letters in the mail from the class. Most of them were the type of generic letters you get when a teacher forces students to write a letter. However, some had comments in them which showed that the student was actually paying attention. The first was pretty innocuous:
I also like listening to you discuss your client’s responsibility to his family and his financial situation.
The next was impressed by my client control skills:
I also really liked how you nudged your client to keep him from talking while the judge was speaking.
The last really was not impressed by my client:
I think the defendant you were defending, case was interesting because I don’t understand why he did what he did. I also think he got a break because he should have been doing his job and not distributing drugs. However, you did a good job defending your defendant.
It always feels good to be appreciated.

23 June 2004

The ABA Weighs In on Justice Kennedy's Challenge

The ABA has come out in favor of getting rid of mandatory minimum sentences. It also goes on about racial disparities and the pardon power but the first part is the one to focus on.

And I will. I hope to digest the report from the ABA's page sometime this weekend and to be able to comment intelligently on it early next week (says the guy who still hasn't had time to read Hiibel).

Judge Finds Federal Sentencing Requirements Unconstitutional

A federal district court judge has found the federal sentencing requirements unconstitutional. I first saw an article about this yesterday on Southern Appeal and a few of you were kind enough to point it out to me.

I printed out the 170+ pages and read the first 50 or so last night. I started to underline passages so that I could include them here but I soon found I was underlining about half of every page. It is well written. The first section is a burning indictment of the sentencing requirements and how they place power so totally in the hands of prosecution that no one can go to trial. He even notes that those who are keeping track of the number of trials in the federal system are so desperate to make it look as though trials actually occur that they are counting pre-trial motion hearings and post trial sentencing hearings (wherein someone testifies) as "trials." Then he goes on about how the shift of judge from adjudicators to clerks for the prosecutor has effected the judges (especially post Feeney). I glanced at the first paragraph of the next section and it finds the sentencing requirements unconstitutional as they contravene Apprendi et al. It's a well thought out well put together argument (so far).

On top of all that, it is a primer for how the federal courts currently operate. Anyone who is starting to practice in federal courts should be required to read the first section because it explains in detail exactly how the system works in practical terms and straight forward language.

22 June 2004

Will Baude on Hiibel

Will Baude, from Crescat Sententia, comments on Hiibel at TNR Online. It lays out the probable future results of this decision a little more calmly than I did here.

A Week in The Life of a Criminal Defense Attorney

Monday: I go to federal court so that my client can be re-arraigned and plead guilty to possession of 50 grams of crack cocaine. It bothers me because I don’t think the prosecutor can prove 50 grams. However, I know he can prove 5 or more grams. If we go to trial my client risks life imprisonment because of his prior record but if he pleads guilty his guidelines (after points for acceptance of responsibility) will put him in prison between 21-27 years. If we go to trial and the jury convicts him of possession of 5 or more grams his guidelines would put him between 21-27 years (because he won’t get points for accepting responsibility); if he testifies at his trial it is quite possible that his sentence would be even higher. And the local prosecutor has a policy of not allowing Rule 35's for those who plead not guilty. Still, I’m worried that if the judge asks me whether I agree that the prosecutor can prove his case I will have to tell the judge “no” and hurt my client.

The hearing starts and my client pleads guilty. The magistrate judge tells him several times that he can back out of his plea at any time up to the end of the hearing and then proceeds to the questions. At the point where the judge asks me the all important question it comes out, “Mr. Lammers, do you agree that the evidence would prove your client’s guilt or that it is in your client’s best interest to plead guilty?” Hallelujah!! I’m off the hook: “It is in my client’s best interest to plead guilty, your Honor.” However, my sense of elation lasts only a few seconds. When the judge asks my client if he is guilty of what he is charged he states, “No.” Crap. The judge leaves the bench and I end up in a rather heated discussion with Client. When the judge comes back in Client tells the judge he is in fact guilty.

And justice is once again served in the federal system.

Tuesday: I don’t have any cases but I go down to the local courthouse to see if I can pick up a couple court appointments. While I’m at court I see two notable things. First, a lady walks up to me to ask which courtroom she has to be in. That’s not unusual; it happens at least twice a week. But then I look past her and see her daughters, both of whom have worn tube tops and short-shorts to court. It really wasn’t all that on the 12 year old but OMG the older daughter (17?) had all the right things in all the right places. I kinda froze for a second and then kept my eyes glued on the mother’s face as I explained when and where she was supposed to be in court. What in the world would make someone think that that was appropriate court clothing in a chilly, air-conditioned courthouse? Don’t get me wrong, if we’d been at a beach I’d have been happy to switch into dirty old man mode and leer with the rest of the guys (as it was it took some willpower to not) but how does one come to the thought, “Gee, I’m going to court today. Should I wear the red or black tube top?”

Second, while I’m sitting in court I see a lady come in with her lawyer to pitch for a bond. The lawyer is up there giving it everything he’s got. He’s talking about her strokes, her kids, her husband getting sent overseas, and everything else he can put forward to tug at the judge’s heartstrings. It looked pretty good until the prosecutor gets her shot and it comes out that the lady is wanted in another State, stands charged with $100,000 in bad checks in Virginia (prior to the current charge), and, in the charge at hand, was using her child’s baby carriage (with baby) to shoplift a couple thousand dollars worth of stuff from Sears. The judge denies bond. As they go to take her back to lockup she takes half a step, wails and collapses on the floor crying, moaning, sobbing, etc. Not in the least rattled, the judge looks over at the deputy and says with a shrug, “I’m going to step off the bench for a couple minutes so you all can deal with this,” waves off the deputy who comes up to escort him, and walks out. In the end, after at least thirty minutes of a hissy-fit worthy of any three year old, they haul her off to the hospital where she will get to spend a glorious night under observation while she is handcuffed to the bed. Nobody really believed it was anything other than hysteria but the lawyer had done such a good job of selling the fact she’d had previous strokes that no one was going to take the chance.

Wednesday: In the morning I go to court to represent a client on a marijuana charge, reckless driving (95 mph), and contempt of court. He is just in court for sentencing on the first two charges because he was convicted, in his absence, in 1992; the capias (bench warrant) was issued for contempt because he had not come to court. In the end he comes out of it with 10 days for the reckless, 6 days for the marijuana, and 4 days for the capias. The judge lets him serve the time on weekends and 20 days is actually 10 days because you only do half time on misdemeanors.

Later, another client has a bond hearing. It does not go well. Client has strong ties in Atlanta and NYC, a string of misdemeanor convictions, a prior felony distribution charge which is pending in another jurisdiction, and he’s facing a felony habitual offender charge. This carries a mandatory year for the absolute evil of driving after some authority in Virginia has told you not to drive and it is extremely easy for prosecutors to prove. Therefore, it is hard to convince judges that a client charged with this should not stay in jail and get a jump on the time he is going to serve. By law, the fact alone that he was on bond for a felony when he was picked up for the second felony means the judge is not supposed to give him a bond (yes, in Virginia we have legislatively overruled the part of that annoying federal constitution about bonds). Needless to say, the judge left my client sitting in jail.

In the afternoon I jump into my car and drive two hours northeast to a jail in Warsaw where the feds have one of my clients. For the first hour or so I am on the wrong road but I catch that before the roads veer too far apart and a 15 minute drive on a little country road gets me back on the right (slightly larger) country road. I get there just at the time I’m supposed to be there but, of course, all the professional visitation rooms are packed and we have to wait 30 minutes. Then I sit and watch 90 minutes of the federal probation officer trying to get my client to remember the exact ages of his 8 brothers and sisters and exactly where he was living 25 years ago. Client is trying hard but a lot of it just isn’t coming to him.

Finally the interview ends and I jump back into the car for the ride home. I turn the cell phone back on and I have messages. In fact two clerks from my local courthouse had called to try and find out why I wasn’t in court. Aw, crud. I missed a hearing. I start to call back and my phone cuts out. I wait a couple minutes and try again but the phone can’t even find service. By the time I am back in an area where there’s service it’s past 4:30 and the clerk’s office is closed.

Thursday: In the morning I have a client charged with an 8 month old driving suspended charge and a contempt capias for failing to appear in court. The defense? It wasn’t my client. Client lives in Warsaw and goes to work at 2 a.m. in the morning; there’s no way he could have been driving around the southern part of Chesterfield County at 10:40 on a Thursday night. And if he wasn’t the guy in the car he had no way of knowing the court date so he couldn’t be in contempt. Gotta give the officer credit, prior to court I ask him if he recognizes my client as the person from the car and he tells me that Client fits his general recollection but he cannot say 100%. Then I talk to the prosecutor who wants some further proof so I go talk to my client. Client is one of those guys who holds onto every court document he’s ever had so he pulls them out and hands them to me. All of the signatures on the other documents match; the signature on the summons for this case is starkly different from the ones on the other documents. I show this to the prosecutor and he decides he hasn’t got enough to go forward. All the charges are dropped.

I wait around until the morning docket ends and just before the judge leaves the bench I go up to do a mea culpa: “Your Honor, I’m sorry I missed court yesterday.”

Judge: “You did? I didn’t realize you had.”

Dang! The clerks covered for me and I blew it (in my defense the judge’s usual clerk was not in on Thursday so I couldn’t check with her first).

Judge: “That’s okay, Mr. Lammers, everybody makes a mistake once in a while. I don’t worry about you. You always make it to court.”

Nice of him to say. Obviously it isn’t always true, but it was nice of him to say it.

During pretrials I get assigned a client who has been picked up on a larceny of meat from a grocery store. It was convenient that he was picked up the night before because I represent him on a possession of cocaine charge this afternoon. Cynical being that I am, I go to talk to him convinced that it’s just a little too convenient. Nonetheless, it turns out that it was entirely coincidental; my client just did a bad job of stealing at the wrong time.

In the afternoon I go to represent him on the possession but it turns out that the lab report hasn’t come in yet. Therefore, the case will be continued. This has been a continuing problem and the judges aren’t too happy with it (the supreme court fusses at them for continuing too many cases) but there really isn’t anything anybody can do to change it. While waiting for Client to be brought out, I decide to tweak the prosecutor a little and suggest the court adopt the same policy my clients keep telling me is in place in Richmond and automatically dismiss any cases wherein the report hasn’t been received within 45 days. The judge looks intrigued for a couple seconds but the prosecutor quickly jumps in to point out that this would just mean that all the drug cases would end up getting direct indictments and the subject fades as my client is finally brought up and we take care of the continuance.

Friday: First thing in the morning, I run off to the local courthouse in order to handle a felony petit larceny but my client is not there. This is interesting because she didn’t have a bond and was being held at the local jail. I check the local jail list and call the regional jail to see if she’s in either: nope. So then I expand my calling radius to other nearby jails and it turns out she’s in Richmond’s jail. Our local jail had shipped her there and not bothered to tell anyone. Therefore, this case gets continued until she can be brought to court.

I jump in my car and zoom over to another county where my client is charged with 3 misdemeanor bad check charges and 1 felony bad check charges. After a little bit of negotiation the prosecutor agrees to drop all the misdemeanors and reduce the felony to a misdemeanor with 30 days suspended as long as my client pays all the checks.

Thereafter, I go back to my office for Friday afternoon open office hours and not a single client shows up.

Superbowl Streaker: I Didn't know it was illegal

Jury: Yes, you did.

21 June 2004

Required to Incriminate Yourself

Wow. Gotta read the opinion but you are now required to admit your (potentially incriminating) criminal record to the officer, admit your (potentially incriminating) traffic record to the officer, admit to any warrants pending, allow officers to monitor the locations where you have been, etc.

I always knew the officer had the right to ask but I just figured you'd be able to assert your right not to aid the officer in gathering information about you.

Some of the news articles I've seen have asked if this might be the first step toward a national ID card. What's the point? The Supreme Court has cut a huge swath through the previously viable right to remain silent. Your name gives the government access to all sorts of important information that the current officer, or a future officer, might use against you. An ID card might even curtail the abuses which are now available. The next step will be for officers to be allowed to ask background info (ss#, DOB, mother's maiden name) in order to confirm that a person is who he says he is. Then what protections will be shorn away under the pretext that they will only effect the guilty (like the 4th amendment "no it's not really a search" dog searches)? Reasonable question tests will abound and consider the entirety of the set of circumstances. Good faith exceptions will come into play at about the same time.

The 4th Amendment is lying near death because our courts have shown a lack of foresight. It looks as if the health of the 5th Amendment is starting to take a turn for the worse. Not that we need them anyway; after all, only the disfavored will actually be effected.

Required to Incriminate Yourself II

My immediate, visceral reaction to the result of the required self incrimination is above. I saw the articles after I got back from my jail visits this afternoon and haven't had time to read the case yet.

These folks have had a chance to read and comment from knowledge:

Volokh 1
- Volokh 2 - Freespace - Crime & Federalism

Virginia Court of Appeals 06/15 - An Act Ain't An Act

Jefferson v. Commonwealth - Subject: The ban on convictions in Virginia for separate charges arising from the same act.

Facts: Jefferson was found guilty of carrying a concealed weapon and claimed that the conviction barred a subsequent prosecution for felon in possession of a firearm.

The Court: Unlike the 5th Amendment double jeopardy bar to subsequent prosecutions, Va. Code sec 19.2-294 relies on the acts of the accused, not the elements of the offense. There is only one act if the subsequent conviction relies on exactly the same evidence as the prior conviction. In order to pass the "same evidence" test the time, situs, victim, and nature of the act must be exactly the same. If there are separate legal disabilities there are separate "natures" and therefore separate acts.

Comment: Umm . . . er . . . And that's not a separate element test?

Clearly, having a "separate legal disability" is not an "act." An act is defined by my old trusty Webster as "anything done; an exertion of energy or force; deed." I realize that "act" can be stretched all out of shape (including things as far out as "acts of omission"). However, the most basic aspect, normal usage, and plain meaning of an "act" is a doing of something real: an activity. It is the driving of a car, the possessing of a gun, the embezzlement of funds. It is behavior defined by its purpose and the purposeful behavior is meant to accomplish a particular goal1. This goal is almost never violation of the law.

An act is inherently defined by its purpose. To redefine a single act as more than a single act because it triggers more than one legal disability is to define the act through the components of the legal disability rather than the purpose of the act. In other words, it is to define the act as acts because it violates two criminal definitions, not because two things were actually done; there are two "acts" because crimes with differing elements were contravened by the singular activity.

That's a seperate elements test.

1 I don't quite agree with Aristotle that every act aims toward a "good." Experience teaches that many goals are purely hedonistic in nature and therefore either nuetral to the good (amoral acts) or contrary to the good (immoral acts). Although, I do seem to remember him discussing those who know the good but developed or chose to pursue bad habits (been a while since I read Aristotle).

20 June 2004

A Quote Which Must Be Passed On

"[W]hen the feds have charged you in a high profile case you are like a fish in the bottom of the boat with someone taking an oar and beating the air out of your lungs."

The Hammer

Well. I finally got my new war hammer in and put it up on the wall.

For those of you who don't know I buy one of these when I have an absolute victory in a jury trial or I get an absolute victory in appellate court - no "moral victories" or "good/great results", only total success. As you can see, they are few and far between.

The two smaller are cavalry models and the larger is an infantry weapon. The latest is from the per curiam appellate victory a while back as to the unconstitutional search of my client and her truck (it took a while to get in).

BTW: For those who don't know an old nickname of mine is Hammer. And the entire basis of it is that it rhymes with my last name. Ken "The Hammer" Lammers. If there are any other reasons no one has told me to my face. ;-)

19 June 2004

Juror and Witness Talk - A Definite No, No

And now the whole case is on thin ice. A juror who seemed sympathetic to the Peterson Defense had a few friendly words with a prosecution witness. Probably about sports from what I can gather.

Blonde Justice

In case ya'll aren't readin it, I want to again recommend this blog. It seems that it is shaping up to be really interesting.

I wonder if she actually wears that pink suit into court.

Technology in the Practice

Of the friends and colleagues in my immediate circle I think I am the most proficient with computers. It's a scary thought when you actually consider that I'm not much more than a fairly proficient user with a smattering of html knowledge.

Anyway, I am a big believer in technology as a great tool for the office. I thought I'd go through some of the various software and technology that I find useful.

Word Processors: Okay, Wordperfect and Lotus WordPro are far better word processors than Microsoft Word. Word is, simply put, a bad program. Still, it is the industry standard [snide anti-MS comment deleted] and most legal offices have capitulated to it. With this in mind I really cannot recommend that anyone starting out go with the two better programs. Yet, all is not lost. Rather spending far too much money for a weak program you can get far better programs online for free. OpenOffice.org provides a far better program and it is absolutely free. It's better laid out, it's not counter-intuitive like Word, and it comes with a suite of companion office programs which all use MS format (for those of you who might think that a major boon). When you save documents it wants to use its own format but it is easy to save in .doc and it's not a conversion but a document which works perfectly in MS products. For the life of me, I don't know why anybody with access to the web would ever use Word when they can download this for free. BTW another, even simpler, option is AbiWord.

E-Mail: First, let me say that if any of you are using the mail programs that come bundled with your web browser, STOP!! Stop right now. Why are you doing this to yourself? These programs pull down and erase the mail from your server so that you can only see them on the computer you first see them on. They also directly expose your computer to all sorts of viruses which are actually pulled down into the computer with the e-mail. They also leave your saved e-mail addresses available for the virus to duplicate and mail itself out to everyone you have contact with (friends, clients, etc.). This is what happens when you get email from a buddy and your (hopefully up to date) virus software screams "infected" but he swears he never sent it.

Second, let me thank the kind people over at Google for offering their massive storage 1 gigabyte e-mail service. I don't plan on using it because it doesn't have all the bells and whistles but because of them Yahoo has raised the space in its free accounts to 100 megabytes. In case you are not, you should start using Yahoo immediately. Go to Yahoo and set up an account; then download Yahoo Messenger and sign in under that account name. Turn on the Bulk Mail option in Yahoo mail and it will catch 98% of spam; I think maybe 10 a day get through on mine. You'll have to scan the bulk mail every so often to make sure some things aren't getting sidetracked but you should do that no matter what your spam catcher is. The advantages to the Yahoo account are numerous. (1) The storage space is so large that unless you are getting a ton of attachments every day you should not have to do anything but read and store your messages for a loooonnng time. (2) Your messages are, and remain, available anywhere you can find a computer with internet access. So, if you are in the courthouse without your cell phone you can usually pop into the law library and check to see if anyone has left you a message. Yahoo mail also works with most modern cell phones so you can check your mail when you are away from the office. (3) The virus is on Yahoo's computer, not yours, and Yahoo automatically scans any attachment before you download it to make sure it is clean; the virus cannot get the saved e-mail addresses and spam your clients either. (4) Yahoo messenger will notify you (by sound and pop-up) whenever a message comes in. It is the best way to go.

Internet Research: If it hadn't been for the web, I'd have never gotten off the ground. Aggregaters, such as FindLaw and AllLaw are useful in getting you to the many sites wherein you can find the cases and statutes you need. FindLaw is still the best among these but things seem a little lax over there since West bought them out. My searches do not yield as much useful information (maybe I'm looking for harder stuff) and little problems have crept in (i.e. The link to the Virginia constitution has been broken for a long time now even though you can link to it here).

As far as pay sites, it is hard to beat West (and probably Lexis) but my personal favorite is VersusLaw. For less than $15 a month you can get all of the appellate decisions from all the State and Federal systems. Now, there are no headnotes so you actually have to read and think for yourself but I'm not a big fan of headnotes anyway (having seen too many which say one thing while the case actually seems to say the opposite). One thing I really, really, really like about VersusLaw is the fact that it numbers the paragraphs in the opinion. For a trial lawyer this is wonderful. As you stand there in front of Judge Smith with a 40 page decision you can point him to exactly the paragraph which supports your position. It is much easier than the painful back and forths we've all seen where the judge and the attorneys try to figure out where exactly certain language is. The only problem is that VersusLaw only goes back to the 1930's. This can cause some difficulties in Virginia where there is something of a mania for citing cases from the beginning of the Commonwealth, the founding of the Republic, and maybe even back to Blackstone or the Magna Carta (not that these cites often prove very relevant to the actual matter at hand).

Computers: I'm of the opinion that you should probably be able to get away with one portable computer (per person) to run your law office. This explains why I have 2 desktops at my office, a portable, a desktop at home (strictly for professional use of course) and a PDA powerful enough to be a computer by itself.

I've tried various configurations of the computer equipment I have. I've tried putting all my computers on a wireless network and that worked for a while but my internet provider would only allow one of my computers at a time to access the internet with my DSL so that turned out to be pretty useless. Actually, it was useful for a while as I kept all my legal docs on a single computer and accessed from every computer, thereby ensuring that I wasn't always pulling up a number of different variants every time I pulled up a model file from a different computer. However, when my primary computer died a while back I just bought a USB thumb drive which would fit in all my computers and never set the intranet back up.

USB thumb drives are a very convenient item. The one I have has 512 MB of memory and has the original of every form I use. Whenever I develop a new form it goes on there as well. It goes with me everywhere. If there's a computer nearby I can get an order or motion together in just a couple minutes. Not a necessity, just a nicety.

While most guys are off drooling over Corvettes, I am that geek who's a sucker for new computers. However, there really isn't all that much need for all the bells and whistles. Most of us could get away with a middle of the line computer in order to do wordprocessing, bookkeeping, and internet searching. I'd suggest that everyone should probably still have 3.5" drive and a writable CD drive. In reality you shouldn't need either; anyone else with a computer should be able to get your files more quickly thru e-mail. However, some people are stuck in old-fashioned mode and want to have that disk in hand. In order to back up your important files, I recommend buying an external hard drive; plug it into your computer's USB port one day a week, download the files, and store it somewhere else. External hard drives have become amazingly compact. If it wasn't for the cords my 40 gigabyte external would fit easily in a pocket.

The portable computer is probably the best way to go for a law office. It takes up less space and you can take it with you so you can actually work somewhere other than your office. The 9-10 p.m. nights at the office can fade into obscurity because you can take some work home with you. It can also travel with you to a law library if you intend to do some work there. Don't get suckered into one which is a big clamshell; sure they have bigger screens but that doesn't really mean much while you are using a word processor or using the internet for research purposes. On the other hand, don't buy one of tiny ones unless you have very small hands or you can type using just one. Some of them are about the size of 2-3 of my PDA which means they are small, light, easily carried but how anyone could type on that is beyond me.

If you have a decent PDA and a desktop don't bother getting a portable computer. Buy a wordprocessor for the PDA and an expandable keyboard. Since the day I did this my portable has mostly sat gathering dust. The only thing a PDA cannot do is hook into the internet over the phone like a computer. It may even be able to do that somewhat if there is wi-fi coverage or if your phone has the ability to hook to your PDA and the internet or if your PDA and phone are a single unit.

PDA's: My first PDA was some old model of which I can't even remember the brand. My second was a Palm and I have been through m100, i705, Tungsten C, Tungsten T3, and back to Tungsten C. I use them hard, keep them in my pocket with me at all times, and have been impressed by them all. I don't have one of the phone models because no court around here will allow me to bring a phone in and my calendar is in the PDA. Most of the functions which I use have been available from the very beginning. I don't remember the exact program but there was some sort of word processor on my old m100. The major difference on the new models is that the wordprocessor is more advanced, I can leave copies of most of the files I use on the PDA, and there is a database program I use. There are lots of gimmicks but I don't use most of them.

I'm only going to discuss the two Tungstens here because they are the ones you are likely to still find. The Tungsten C has a nice little thumb keypad which is convenient for inputting small things (if you are going for more than a sentence or two you might want to hook up the expandable keyboard). Functionally, that is its one major advantage. It also has wi-fi but that really isn't a function which finds much use out in the hinterlands where I usually find myself; I end up in jails so far out that my cell phone won't work – wifi ain't even a dream out there. The best part is that it is sturdy and that is a serious requirement when it sits in my pocket all day every day.

The Tungsten T3
has all sorts of spiffy things. The screen widens out which is nice when you are showing people pictures you have transferred to the PDA or are using it in conjunction with a keyboard to be able to see more of the document. However, most of the time that space is either taken by a virtual keyboard or a place to write script so that it will appear above. Using the stylus in order to hunt and peck just doesn't work well for anything more than a couple words. The writing works better except for two things. First, it cannot keep up. If you write too quickly it screws up every time. Second, Palm screwed up its letter system. Instead of keeping everything a one stroke per letter alphabet it made the T's and K's two strokes. This made them more as one would write them in the real world but it also guaranteed that at least a third of these letters would come out wrong; it is very annoying. There were, however, some benefits to buying this PDA – it came with full copies of the books The Wizard of Oz and The Last of the Mohicans. So I read the entirety of The Wizard of Oz while I was sitting around in courtrooms and jails waiting (BTW, it is very different from the movie). I didn't get too far into Mohicans before I gave up on this model.

Why, you ask did I give up on the T3? Well, I bought it as a compromise when I broke my C doing something stupid (no, I will not tell the story) and I could not find another at any local electronic store. It worked well enough and everybody is impressed by the sliding action. The thing that resigned it to the scrap heap was the fact that it kept losing its charge and every bit of data. This is very annoying if you have forgot to sync your PDA last night; most PDA's hold a charge in reserve so that your data is saved when the PDA is recharged. As best I can figure it, while riding in my pocket the button on the side which triggered the voice recording and playback system would get pushed in and drain all the power. It is a serious design flaw. One of the reasons I was convinced to compromise and buy the T3 was this recording system. I reasoned that since it was supposed to have a hour of recording capability it could replace my tape recorder. The only problem was that the recorder would shut off after three minutes when the PDA automatically shut down to save power. As well the button on the left side was badly placed and very sensitive so that it would get hit and switch you out of whatever you were doing into the voice recorder or turn the PDA on by accident. After losing all my newly entered data about 4 times I knew that something had to give so I ponied up the money to buy another C.

The Future: If anybody out there wants to be on my good side forever and a day, buy me the Electrovaya Scribbler SC2010 Windows XP Tablet. It's the only Tablet I've seen with the battery power to actually make it a viable system, something I could take to court with me every day bring back home or to my office at night plug it in so that it recharges and then take it back out for another day. My vision for this is to scan all files for my case (warrants, etc.) into it, takes notes on it, and keep everyone's file in it completely electronically. Of course, it wouldn't work completely. Residual case files would have to be maintained for everything which must be signed in State court. And the federal courts are so technophobic that they won't even let me bring in my PDA. Heck, federal courts are so technophobic that I'm surprised they let us bring in pens and paper. They could provide us with quills and inkwells at our tables so we could sign the parchment they give us. After all, the most dangerous item which goes into the hands of my clients while they are in the courtroom is the pen; most people don't think about it but a pen is a well constructed, dangerous puncture weapon (that's why prisoners only get those specially made flimsy ones while incarcerated).

Okay back to the Scribbler. I want one and I want one badly but ever time I get enough expendable money stored away something comes up and I just cannot place this at the top of my list of priorities. Oh well, I guess I'll just have to keep using paper (or find someone rich to marry).

18 June 2004

Kobe, DNA and a Judge's Suggestion

After results from the State lab were contradicted by results from the Defense's lab tests the prosecution sent the DNA to Virginia for testing. However:
[It]was halted when state District Judge Terry Ruckriegle ordered prosecutors to explain they weren't letting a defense expert observe the tests, as the judge had ordered. Prosecutors said last week they thought the judge had made only a suggestion, not an order, and that the lab has policies against outsiders observing tests.
The question is whether the prosecution really screwed up that badly or whether it was trying to pull a fast one.

Stealing from the Watchers

If you are going to do a show focused on catching people in the act of breaking the law you probably should take care that you don't get your stuff stolen.

17 June 2004

Virginia Court of Appeals 06/15: Rules > Constitution

West v. Commonwealth - Subject: Double Jeopardy and the ends of justice exception under Va Supreme Court Rule 5A:18

(1) If the prosecutor mentions double jeopardy concerns in his argument against the Defense's motion to strike the evidence and the only time the Defense mentions double jeopardy concerns is in the sentencing hearing when he states that the prosecution must elect between the two charges it is not enough to preserve the double jeopardy argument for an appeal.

(2) The "ends of justice" exception can be invoked when some crucial procedures are not followed by the trial court, i.e. jury instructions without the proper elements of the alleged crime.

However, the fact that an error is a clear, substantial, material violation of the constitutional bar against double jeopardy is not enough to qualify for the ends of justice exception. This argument is labeled "tautological."

Comment: Yeah, I had to look up tautological to make sure I had the right definition. I understood it to mean "self-sustaining only under its own internal logic." I think that's basically correct but I checked anyway. Webster online defines it as "true by virtue of its logical form alone" and Webster's 3d New International defines it as "true purely by the meanings of component terms."

So, if I'm understanding the term correctly the court says that it is only internally logical to the petitioner's argument that a clear, substantial, material violation of the constitution's bar against double jeopardy is an unjust error. When viewed outside the petitioner's argument there is no unjust error even if the constitutional right against double jeopardy has been violated (a number of cases are cited). The Rules of the Supreme Court of Virginia trump the United States Constitution.

16 June 2004

Yankee Lawyer Southern Justice

This has been bouncing around in my head since I watched "My Cousin Vinny" a few days back:

When I first came to practice criminal law I was surprised at how quickly trials go in Virginia. Most felonies are completely tried within a day. Major trials seldom take more than a few days. There was a story which floated around among the old timers which was used to demonstrate the difference between a trial in Yankeedom and a Virginia trial.

The story starts with a bunch of folks from up North with vowels at the ends of their names coming down to this area and starting various restaurants serving pizza and various types of pasta involved foods. Figuring these people for trouble, local law enforcement cracked the whip and a number of people ended up in court.

A lawyer from New York City comes down here pro hoc vice to handle one of the gentlemen's jury trial.
Lawyer: Your honor, I don't think that jury selection should take any longer than two weeks.

Judge: Counselor, this trial is going to conclude this afternoon.
And the judge was right.

The lawyer had been under the misunderstanding that a judge in Virginia would actually allow him individualized voir dire.

Is the story true? Who knows. Did local law enforcement stomp out those establishments? Well, I've not had any problem finding a place nearby where pasta is served and the folks running the place always seem to speak some foreign tongue.

15 June 2004

Lawyers on Strike

Lawyers doing indigent defense in Oregon went on strike because they were capped at $550 for most cases and $3,750 for homocides.

Hmmm . . .

What are we paid her in Virginia? Oh yeah, that's right: $395 per most felonies and $1096 for very serious felonies (homicide, aggravated malicious wounding, etc.)

Ah, who cares about the money? I can live off my trust fund. Whatdaya'mean I don't have a trust fund? You mean I actually have to work to pay my bills? Aw crud.

Virginia Court of Appeals 06/08 (part 2)

Washington v. Commonwealth - Subject: Can a Defendant be found guilty of transporting drugs into the Commonwealth when he only picks them up at their destination?

Accepting delivery of an item after it had been delivered through the mail is part of its transportation. When a person accepts a mailed item he is constructively present at its mailing. Therefore, he can be a principal in the second degree of any crime committed in the mailing of the item.

Comment: This seems a stretch to me. If the package had actually been delivered to the Defendant personally at his apartment or place of work I think the Court’s reasoning works. However, this package had been delivered to a private actor (Mail Boxes etc.). At that point it ceased to travel interstate and the pickup by another private actor would be an intrastate activity.

Edmonds v. Commonwealth - Subject: What is necessary to establish that a judge took judicial notice of a matter?

If, in a motion to strike the evidence, the Defense points out that a fact has not been proven and that the judge has not taken judicial notice of it, the judge’s denial of the motion to strike does not establish that the judge has taken judicial notice of the fact.

Of Note: Judge McClanahan impressed the heck out of me by going back and actually looking at the warrants. Her concurrence points out that the scratched out dates on the warrant makes it impossible to determine exactly whether there was notice or not.

Comment: This is just a silly little error which could have easily been corrected. It wasn’t and Greg Sheldon is just too good an attorney for the prosecution to make errors like this and expect to get away with them.

Pearson v. Commonwealth - Subject: Justification for a DUI blood test.

If someone claims to have burped three times, each time restarting the 20 minutes waiting period for the DUI breath test an officer can conclude that the person is physically unable to take the breath test and arrange a blood test.

Emerson v. Commonwealth - Subject: Miranda and your client’s pants

Facts: Emerson is rousted from his sleep and removed from his apartment so that the apartment can be searched. He is standing outside in his skivies so the officer watching him asks him what clothes he would like. Emerson tells the officer he wants the clothes by his bed (you know, the ones with the drugs in them). One officer dumps the stuff out of the pockets and hands the clothes to the officer outside who asks Emerson, “Are these the clothes you wanted?” Emerson answers, “Yes.” The stuff from the pockets is searched and drugs are found.

The Defense argues that the above conversation violates Miranda. The Court concludes that the conversation was not meant to be interrogatory as to a crime and therefore did not violate Miranda.

Comment: Okay, I understand why the Defense would argue something like this but I am not sure why the issue still existed after trial. It was a one room apartment, the only person in it was Emerson, and the clothes were right next to the bed he was sleeping in. That pretty much establishes possession right there (at least in the courts wherein I practice). The prosecution could have just asked the judge to opine whether or not the statement “Yes” was the decisive factor or whether the decision would have been the same even if “Yes” were excluded.

14 June 2004

Virginia Court of Appeals 06/08

Hudgins v. Commonwealth (en banc) - Subject: The relationship between a Robbery and a Larceny

Both petit larceny and grand larceny are lesser included offenses in the offense of robbery. However, a court may not convict someone found not guilty of a robbery of grand larceny if the elements of the grand larceny are not alleged in the indictment.

After a finding of not guilty in a robbery prosecution, the prosecutor may not indict on grand larceny even though there are some different elements (in particular the necessity of alleging a sum taken for grand larceny) because both crimes require a finding of guilt on the lesser included crime of petit larceny.

Comment: While a proper result, the way this is laid out would seem to leave whether or not a jury will be offered the chance to convict of a lesser included grand larceny entirely in the hands of the prosecutor. If he wants to make sure that there is no real other option but to convict on the robbery charge he can artfully craft the indictment so that no instruction for a grand larceny can be offered by the Defense. Unless the judge would amend the indictment on the motion of the Defense. I've never actually tried that so I'm not sure if it is allowed under Virginia law.

13 June 2004

A Friendly Judge

Once in a while I wish I could find more judges who were sympathetic to the plight of my clients. However, I'm not sure I'd want one to help my clients escape.

You know, the judge could have avoided all this if she had just found the Detective in contempt. That way the Defendant would have been arrested and the judge would have punished what she viewed as inappropriate behavior.

Link via The Legal Reader.

It's All in the Tie

I was watching “My Cousin Vinny” last night and it brought to mind this passage from Guilty: The Collapse of Criminal Justice by Harold Rothwax:
I had a funny incident some years ago with a lawyer, now deceased, named Joe D. Joe was what we called a Baxter Street lawyer. He practiced out of a little storefront behind the courthouse. And he looked the part—porcine and kind of greasy, with a slick toupee perched ceremoniously on top of his head. Now, Baxter Street lawyers aren't exactly the cream of the profession, but Joe was very bright and very realistic. He saw things clearly, and there was no nonsense about him. He did a good, workmanlike job.

One day Joe walked into my courtroom, prepared to do a voir dire, which is the questioning of prospective jurors. He was wearing a garish tie—a bright pattern of orange and lime green. It was a truly ugly tie. It could make you cringe, that tie. It fell halfway over his substantial belly, hanging like a whorehouse flag.

The first thing Joe did when he stood up to address the prospective jurors was to grab his tie and push it forward into their faces, booming, "See this tie? See this tie? How many of you don't like this tie?"

"Joe," I chastened him at sidebar, "in my view, that is not a proper question. It demeans the process. It makes it silly. It makes it like a circus. Whether that is your intent or not, it is not an appropriate question on voir dire. If you think people are not going to like your tie, wear a tie that you think they will like. If you have no questions on voir dire don't ask any. But this is not a proper question."

Joe responded very candidly. "Judge," he said, "you say it's not a proper question. I've been doing this for twenty years. I've appeared in every courtroom in this building and no other judge has ever stopped me. And you know why they don't stop me, Judge? Not because you're wrong. You're not wrong; you're absolutely right. They don't stop me because that's my only goddamn question. Okay? And they're so happy to have a short voir dire that they let me ask anything. Okay? Now, if that's not okay, I don't have any other questions. But don't blame me. Every judge in this building lets me do it except you."

I had to laugh. In his direct way, Joe told it like it was. And, of course, his purpose in asking about the tie was clear. He knew he wasn't Robert Redford. He wanted to get a feel for the way the jury responded to him.
p. 136-38.
Lest any of you think that you should run out and buy this book I must recommend against it. I read this book many years ago when I was in law school and thought it quirky then. Having looked back through it after practicing for a few years, now I find it downright scary. One particularly disturbing passage:
Our entire system prior to a defendant going to trial is composed of a set of probability screens. Defendants don’t just show up in court on a whim, railroaded by the system. By the time a person reaches trial, he has been deemed “probably guilty” several times - by the grand jury and by the court in preliminary hearings.
P. 133
Rothwax, after sitting as a trial judge in New York for 25 years, does not understand probable cause. Probable cause is clearly less than probably guilty; probably guilty would be the preponderance of the evidence standard. To be fair, I don’t practice in New York. It’s possible that NY imposes a higher standard of proof prior to trial than everywhere else. Any NY lawyers/students/professors out there who sets me straight in the comments will be mightily appreciated.

12 June 2004

Pennsylvania on Dog Sniffs: Reasonable Articulable Suspicion Needed

In Pennsylvania the courts hold a search by a dog to actually be a search. However, only reasonable articulable suspicion is needed to sniff a car:
Commonwealth v. Rogers
Appellant next contends that even if the stop was supported by reasonable suspicion, the canine search of his vehicle was illegal pursuant to Article I, § 8 of the Pennsylvania Constitution. Appellant asserts that probable cause is required before a canine sniff of an automobile may be conducted, and that standard was not met here.

In addressing the constitutionality of the canine sniffs in the matter sub judice, we begin with the premise that pursuant to the constitution of this Commonwealth, a canine sniff is a search. Commonwealth v. Johnston, 530 A.2d 74, 79 (Pa. 1987). Yet, this type of search is not treated like other searches as it “is inherently less intrusive upon an individual's privacy than other searches . . . .” Id. We have noted that “this particular surveillance technique amounts to a relatively minor intrusion upon privacy, much less than is involved, say, in the physical entry and ransacking of a house in an effort to find a quantity of narcotics.” Id. Thus, we held that there need not be probable cause to conduct a canine search of a place; rather, the police need merely have reasonable suspicion for believing that narcotics would be found in the place subject to the canine sniff. Id.

This calculus shifted, however, when we were confronted with an instance in which the subject of the search was not a place but rather was a person. See Commonwealth v. Martin, 626 A.2d 556 (Pa. 1993). In Martin, we were unwilling to allow a canine sniff of a person to be conducted upon a mere showing of reasonable suspicion. We stated that “an invasion of one’s person is, in the usual case, [a] more severe intrusion on one’s privacy interest than an invasion of one’s property.” Martin, 626 A.2d at 560. We emphasized that the “principal object [of the constitutional provisions against unreasonable searches and seizures] is the protection of privacy rather than property . . . .” Id. (citations and internal quotation marks omitted). Thus, we held that while reasonable suspicion was sufficient to conduct a canine sniff of a place, that was too low a level of suspicion when a person, rather than a place, is to be subjected to a canine sniff. When the sniff is of a person, the Martin court required that “the police must have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime.” Id.

With the Johnston and Martin standards in mind, we turn to examining whether Rosie’s sniffing of the exterior and interior of Appellant’s car passes constitutional muster. We first consider her sniffing of the exterior of the car, which lead to a positive alert at the driver’s side door, as this occurred first in time. We agree with the Superior Court that Rosie’s sniffing the exterior of Appellant’s vehicle need be supported merely by reasonable suspicion. Id. 818-20. Unlike the expectation of privacy in one’s person, which in Martin we noted to be particularly high, one’s expectation of privacy in the exterior of a vehicle is more modest. While many in our society have a great fondness for their vehicles, it is too great a leap of logic to conclude that the automobile is entitled to the same sanctity as a person’s body. Furthermore, the exterior of a vehicle is exposed to the public, and is not considered an intimate space. Thus, considering the relatively minor privacy interest in the exterior of the vehicle and the minimal intrusion occasioned by a canine sniff, we conclude that mere reasonable suspicion, rather than probable cause, was required prior to Rosie sniffing the exterior of his vehicle. As Trooper Banovsky had reasonable suspicion prior to Rosie responding to the scene, see supra, then Rosie’s sniff of the exterior of the vehicle passes constitutional muster.
Could this be an influential case pointing in a direction the Federal Supreme Court might want to follow?

Pointer via 4th Amendment.com. I'll leave it to you to go read his rip on the fact that having Tide in a car leads to reasonable articulable suspicion.

Texas brightens my day yet again.

I don't think I've said this lately (but I know I have before) - whenever I get really depressed about the state of the law and the refusal to recognize or enforce people's rights in Virginia and the Fourth Circuit, I can always count on Texas to let me see that it could be worse.

Texas has been fighting to keep a 16+ year sentence in place
when it knows (1) the sentence is contrary to the law and (2) the convict has served, many times over, the two years to which he could have been legally sentenced.

09 June 2004

Glitch in a Flawed Statute

A first or second conviction of DUI within ten years is a misdemeanor in Virginia Or is it?

The punishment statute provides in Va Code sec. 18.2-270:
A. Except as otherwise provided herein, any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.20, but not more than 0.25, he shall be confined in jail for an additional mandatory, minimum period of five days or, if the level was more than 0.25, for an additional mandatory, minimum period of 10 days. The additional mandatory, minimum period of confinement shall not be suspended by the court. In addition, such person shall be fined a mandatory, minimum fine of $250, which shall not be suspended by the court.
If your BAC was .25 you face a class one misdemeanor with a maximum penalty of 12 months and 10 extra days, "an additional mandatory, minimum period" (or at .20, 12 months, 5 days). The local jail keeps my client for that extra time on top of whatever sentence the judge may set forth.

The problem with that is that the General District Court, where almost all of these cases are decided, only has original jurisdiction over misdemeanors occurring in the locality. In Virginia, a felony is defined as "punishable with death or confinement in a state correctional facility." It's a somewhat circular definition because Va Code sec 53.1-20 defines people who enter the custody of DOC by using the word "felon":
B. Persons convicted of felonies committed on or after January 1, 1995, and sentenced to the Department or sentenced to confinement in jail for a year or more shall be placed in the custody of the Department and received by the Director into the state corrections system [].
Basically, anything over 12 months is a felony. It exceeds the maximum punishment of 12 months for the highest level misdemeanor (Class 1) and it subjects the convictee to potential punishment in a state correctional facility.

Interesting, you're thinking, but what's the point? After all, if you argue this in court all the prosecutor has to do to avoid your argument is to move for nolle prosequi and direct indict your client in Circuit Court where jurisdiction would be clear. The point is that no prosecutor I know of has been taking this step. Therefore, an unknown, but potentially large, number of citizens have been convicted by a court which did not have jurisdiction to do so.

The point is that an order handed down by a court which had no jurisdiction is (or at least ought to be) void ab initio. A court can only be given jurisdiction by the Legislature and a person acquiescing in a court order he believes valid under the law does not constitute a legislative action. This is pertinent because as the law stands prior DUI convictions are underlying offenses for DUI (2d), and the Class 6 felony (max 5 years) DUI (3d) or greater. As of 01 July 2004 DUI convictions will also be underlying convictions for the newly criminalized refusal to take a breath test. As the DUI laws get more and more draconian the issue of whether a prior conviction actually exists becomes very, very important.

Around the Web

From across the Pond reports that a Barrister in England was removed from the jury because he understands how the system works. I'm not exactly sure why that would be a reason to remove him. Juries are supposed to have the collective knowledge and wisdom of the community in whatever permutation might specifically take form in a particular jury's members. On the other hand, the part about him knowing the prosecutor would be a valid reason to strike because of the possibility that an impression formed from that knowledge might change the lens through which the juror sees the evidence.

Mark from Sark linked to me a while back. Not sure if I noted that before.

08 June 2004

Possession of Chocolate Chip Cookies

The judge had called a "5 minute" recess1 and I'm standing there talking with a couple clerks and an officer:
Clerk: I smell something like a cake or something.

Me: I smell it too. It smells like chocolate chip cookies.

Officer: That's the pound of marijuana I have in my evidence bag.
More proof that it's a good thing I never decided to be a police officer. Just picture it, Officer Lammers walks up on a car full of 18 year old kids and they roll down the window. "Good evening folks (sniff, sniff). Hey, ya'll eating chocolate chip cookies in there?"

1 The judge is a prototypical Virginian and does things the Virginia way. The Virginia way, as best I can tell, does not involve looking at the clock very much. He's a good judge, it's just that everyone in the courtroom knows that in minutes 5=15 and 10=30.

Jury Silliness


A jury is called and the judge and attorneys spend a hour doing jury selection. Then the judge asks if anyone needs to use the facilities before the trial begins, a couple jurors raise their hands, and the judge send them back to the jury room (which has its own facility). A minute later a juror opens the door and talks to the deputy who goes and gets the judge out of chambers. This exchange follows:
Judge: What seems to be the problem Ms. Smith?

Juror: I'm claustrophobic; I can't stay in that little room.

Judge: Why didn't you say something when I asked if anyone had any problems which might keep them from being able to complete their duty as a juror?

Juror: I didn't realize the room would be so small and without any windows. I'll be OK. I'll just have to take my valium.

07 June 2004

The Evil of Wanting to Get Paid for Your Work

Delegate Hamilton starts this editorial by outlining some of the changes in indigent defense which the Legislature has undertaken. He then goes into attack mode because lawyers who are losing a substantial portion of their business to newly founded public defenders offices admit that they depended on the money they earned from doing court appointed work.
According to a May 20 article in the Daily Press, the last initiative seems to have met with displeasure by some lawyers in the local legal community. Surprise, surprise! Private lawyers complaining because the creation of these public defenders offices might cause their taxpayer-funded government subsidy to be reduced.

In 2003, a local lawyer referred to court-appointed work for indigent defendants as a "meal ticket." In the most recent Daily Press article, another local lawyer made the following comment: "For a lot of guys in the city, it's their primary bread and butter." Another lawyer "expects to have to reorient his practice to make up for the loss of court-appointed cases."

Never once did these lawyers mention the rights of indigent defendants as their focus or priority. This too should come as no surprise, as the Spangenberg report quoted one local lawyer as being candid and "admitting that with a retained client, he spends substantially more time looking for an issue that will benefit the client, while in a court-appointed case he spends as little time as possible looking for an issue that will dispose of the case. He added, 'If we want to make a living we have to get rid of the case as quickly as possible.'"
. . .
[R]eferences to court-appointed work as one's "meal ticket" or "primary bread and butter" underscore a serious issue in addressing the constitutional rights of indigent defendants. Thankfully, there are many private and public attorneys in our society who are willing to provide these important legal services without focusing on the public subsidy they receive to maintain a private legal practice.
First of all, payment for WORK done in the defense of those indigent accused of a crime is not a “taxpayer-funded government subsidy.” It is WORK and should be paid for.

Second, does anybody actually believe that the reason the Legislature is putting these offices in place is because the members are concerned about the representation of the indigent? These offices are going in place for the very reason that the Delegate alludes to when he complains that 75% of money paid for indigent defense went to private attorneys who only did 25% of the work. The Legislature wants to save money and it could care less about the representation. If the members seriously believed that socializing criminal defense is the best thing that can be done for indigent Defendants it would mandate public defenders throughout the Commonwealth. - BTW: It seems to me that the 75/25 numbers, &cetera are iffy; they are probably very heavily skewed by capital murder trials and particularly by the Muhammad/Malvo circuses.

Third: Yes, my primary source of income is from defending the indigent; it is therefore my “bread & butter.” However, anyone who thinks I’m getting rich doing this should go out and look at my 15 year old clunker which I hope will last for quite a while longer. I would be very concerned if, after I have spent years developing my practice, someone came along and yanked away that which I had relied upon to pay my bills. I’m sorry Delegate Hamilton, but I am not a saint. I do not live in a cave, wash up out of the rain barrel, and put on my one threadbare suit so that I can walk to the courthouse and represent people for free. Nor does the fact that I represent the indigent keep my creditors from wanting to get paid. I live in the real world and have to consider things which happen in the real world.

All that said, I try to represent every one of my clients as best I can. The fact that I have to worry about paying my rent does not mean I am less upset when someone I believe is innocent is found guilty. It does not stop me from researching issues and arguing them in court. It does not stop me from putting on the jury trial when it is my client’s best interest or if he demands one. What’s the quickest way to stop me from striving for my clients? Shut me down by not paying me or take my work away by socializing it.

Fourth: Why is a Republican advocating either (a) socialization of a private business sector, or (b) professional businessmen working without getting paid adequately?

Fifth: This whole editorial strikes me as a defiant scream of a cornered Legislature which knows it is in the wrong. It has refused session after session to raise fees to anything comparable to what they are in other States. Something has got to break soon. Personally, I don’t think the Legislature is capable of raising the fee caps to reasonable amounts on serious felonies because of election concerns (“Delegate Smith was more interested in the defense of criminals than citizens. Vote Jones.”). On the other hand fee caps which stop payment on a non-capital murder trial (jury) at $1,096 are so clearly wrong that they create serious problems. If I had a crystal ball, I’d say that eventually the federal courts will require Virginia to fix itself.

Sixth: Assuming (1) the 75/25 numbers are correct, (2) that public defenders offices really are a good thing, & (3) the fee caps are dangerously low enough to make federal intervention a distinct possibility: The Legislature could get really creative, mandate public defender offices throughout the Commonwealth, and then double all fee caps for court appointed attorneys (maybe even triple them). It’s a workable solution. Of course, the only problem is the massive funding hit at the beginning when the offices are set up. After that it should even out or maybe come to a lesser amount. You could even alleviate some of the setup burden by requiring localities to match, penny for penny, all the money and benefits they give to prosecutors (including free office space) with money for PD offices.

Addendum: As I read back through this I realize that some might take it as inferring that I think PD offices are inferior. That's not true. I have seen some amazing attorneys who are PD's; they are usually buried under a staggering workload but they are very good. I've also seen some very bad private lawyers. I'm just not convinced that if the Commonwealth were to adequately fund private attorneys and provide them with experts etc. when necessary that there is much difference. My concern is that PD offices will be set up and be perpetually understaffed, underpaid, overworked, and the darling of a Legislature obsessed with the bottom line rather than an adequate defense. After all they are guilty or the officer wouldn't have charged them - right?

Addendum 2: Forgot to give credit where due: Lv SW VA Law.