31 August 2007

Naked Hula Beer Theft

I kid you not.

Can't Pay for that Lap Dance . . .

. . . with cocaine.

Is Sex Part of Faith Healing?

Nope.

Guatemala: Politicians: We'll be tough on crime!

It's a universal political promise. After all, who's going to say they want to be pro-crime? It's like saying you're anti-puppy.

A Lesson for Officers

Guys, I know how frustrated you get with persistent offenders, but you cannot drag him around town behind your motorcycle (even if it is an effective deterrent). It may make you locally popular, but there's somebody up the chain of command who's going to fire you. Especially if there are pictures taken.

Trooper in Pa. Charged with Rape

Gotta admit, I'm suspicious here. I guess biting someone on the inner thigh while choking her to keep her from screaming is possible, but . . .

As a side note, guys, I don't care how much she says it turns her on, those bites have come back to haunt more than one person. Might want to think twice about it. 'Course, many a guy might not be thinking at all at that point . . .

Pedophile and "Evil"

Why in the world would Reuters think it had to put quotation marks around "Evil" when describing a guy who admitted to 89 acts.

Copper Thief Combusts

Before you go tot steal the wire from a house, maybe you should turn off the breaker.

4th: Letters

If you didn't send it and it isn't addressed to you, you don't have standing to make a 4th Amendment challenge.

What Other Defense Can You Try?

Everybody else is employing illegals, why are you picking on me?

Via iP

Wales, Coalfields, and Heroin

Heroin users are twice as likely to live in former coal mining areas in Wales.

30 August 2007

Is the California Pot Rebellion Faltering?

Laguna Hills votes to ban medical marijuana dispensaries.

It take a special kind of ice-heartedness . . .

. . . to steal from a guy who's missing an arm and a leg.

Officer, I was trying to Return the Pellet Gun

I don't care if store security says I was stealing it and physically held me in a bear hug until you arrived.

20+ Years Later a Djudge Decides the Confessions were Bad

Here's something you don't hear about every day: The man confessed to the same crime twice, was found guilty by an 8 to 6 vote of the jury, and sentenced to life imprisonment. 20 years later an appeals judge lets him go.

Copper Theft

Around here they steal wire and sell it for the copper, they haven't (to my knowledge) gone so far that they are causing houses to explode.

Make Date Rape Drugs . . .

. . . and the US will extradite you from Scotland.

Chicago: Da' Outfit

Imagine this: You are the leaders of the Mob. Over the years all sorts of people who were willing to testify against you had "accidents." What happens when the guy who has caused the accidents decides to testify against you?

Attempt to kidnap the Dead

Personally, I'm not going to pay too much money for a corpse.

Gotta Admit, This is Different . . .

You just don't run into too many people trying to break into jail.

An Afghan Opium Market

How it is first aggregated for later shipment to Europe.

A Call for Tighter Reins on Cayman Banks

Because, really, who wants to launder money in a place where you can't ski?

UK: A Call for Less Imprisonment

Because the prisons are over-full.

UK: Prison Guards Return to Work

After they are ordered to by the judge.

What does it say about your church . . .

. . . if the members are so familiar with the criminal justice system that they start singing about Heaven as a court and Jesus as defense attorney/judge?

Cocaine Use Trends

Down among those who graduate high-school and steady among those who don't.

How Does Media Attention Effect Kidnappings?

Copycats.

191 Charges Dropped . . .

. . . because the court clerk hid them from the prosecutor until it was too late to prosecute.

India: Prove He Deserves Bail

The supreme court ruled that lower courts must give a reason if they give an accused bail.

What part of the Big Sign Outside the Detention Facility Did They Not Understand?

You know, the big sign outside of every single jail, prison, and detention center I've ever been to tells me that I am subject to search.

Three girls, who were visiting a detention facility in order to avoid going to court for trespassing, were strip searched. It strikes me that the detention center might very well be within its rights in the search. However, when it made the visitors don dirty prison garb it probably crossed the line.

Canada: Good to Know

It's not only in the US that people complain about civil rights enforcement in criminal courts.

If You Don't Come to Court to Represent Your Client

You get found in contempt and fined $2,250 - at least if you miss 6 hearings.

Going to Prison for a Crime He Didn't Do - ON PURPOSE

In fact, he did it so many times that people came looking for him to do their time.

Anonymous Thief Websites

Is this only a Japanese thing?

Catch a Thief

Get yourself and you general manager fired.

Everybody needs to write Home Depot about how stupid that is.

An Honest Thief and a Lesson Learned

The thief only took the $4 he needed and you shouldn't leave your prosthetic hand attached to the motorcycle when you go inside to have some fun with a girl.

New Zealand: Protest Against Prior Rape Acquitals . . .

. . . didn't cause you to get convicted.

Stolen Clothes?

Apparently, this guy cleaned out Wal*Mart.

Trooper Convicted of Not Reporting Child Molestation

Loses job, 9 months probation.

No Scapegoat Defense in India

Take a bribe, whether for you or somebody else, and you are guilty.

Note also - no double jeopardy protections.

Thank Goodness I Didn't Serve in the Russian Army

A Russian officer arrested for beating a conscript and leaving him in a kennel to die.

Your Big Brother, Mr. FBI, is Listening

and, apparently has gotten very, very good at it.

You Might Get Caught . . .

. . . if you leave your heroin in the rental car when you return it.

Ted "Tubes" Stevens

Apparently he doesn't only screw up when he talks about the internet - he stumbles over whether he's a target.

Leon Strikes Again

Affidavit not good, but officers couldn't know that.

Are Prosecutions up . . .

. . . or are they down?

New Zealand: A 5 Year Old Can't Trespass

Well, technically she can but the police can't enforce the law.

What, then, are we to do about the lolipop bandit?

29 August 2007

Another Day With Lotsa Posts

And away we go . . .

The UK, Prison Guards, and a Secret Strike

Apparently, the prison gurad union held their cards very close to the chest and ambushed the government with a surprise strike.

Rapists Get Treated Different in New Zealand

"McNamara fathered a child from prison then paid for prison escorts to allow him to attend the birth in January."

Yeah, sure, Mairjuana . . .

. . . in a Japanese prison is growing there because the dirt was contaminated with pot seeds when it was brought in.

Homer was right: Americans will never embrace soccer

Well, maybe the stoners will.

Feds Find NY Statute Unconstitutional

If a judge finds the facts rather than a jury it ain't constitutional.

Defense Counsel Isn't Responsible

If the law changes radically after he has advised the defendant about it.

Prosecutorial Discretion

We have discretion?!? Why didn't somebody tell me?

I could discrete that all fines that get charged in my courtroom go into my checking account.

Whatdoyamean, it doesn't work that way?

Texas Death Sentence Carried Out

Hopefully, there was more evidence than this.

New Blog

I don't often point people to a new blog, but this one looks promising: SnapShawt

When people move past their addictions . . .

. . . they have to talk about it.

Text Message Tip Line

Works like a charm.

7-11 and the lottery quick switch

When you go to turn in your winning ticket, be careful what the clerk gives you back.

You know the NRA is feeling all warm and fuzzy about this

Britain outlaws firearms and firearm crime rates double.

Senator Soliciting . . .

. . . in a bathroom, no less. Or at least he pled to it.

He Burnt Burning Man

5 days early.

Does something that is made to be destroyed have value such that a person can be charged with destruction of property (or vandalism, as some jurisdictions call it).

Mark's Feeling the Juror's Luv

A letter from a juror.

Let me not be a journalist in Russia

5 police arrested in murder of a Russian journalist.

Japanese Thieves Haven't Figured It Out Yet

You don't steal a purse right in front of an obvious camera.

The Ongoing Crawford Battle

Ever since the federal supreme court said confrontation means confrontation, thee have been issues like this popping up.

Federal Court: Who gives a *%^&$ about State law?

We're the feds, we don't care if a State law was broken.

Hazing Not Administrators' Fault

Generally, it's not. The job is to run the school, not babysit.

18 Years Later - DNA Clears a Prisoner

18 years after conviction for rape.

Windy is found by his prosecutrix

And she talks about the case.

Vacation for Murder

If you promise someone a Hawiian vacation after they kill someone for you, you should probably make it a one way ticket.

Another Dog Case: Alert on Car - Search Person

OK as far as Kentucky is concerned. The lesson for law enforcement? Keep the person in the car when the dog goes around it so you can search him if Rover alerts.

Can you show up at the prison Tuesday? Please?

Report when you want seems to be the wave of the future.

One shot . . .

Walk out of a bank like this guy did and we all know what SWAT will do. Another example of suicide by cop.

When Prisoners Get Treatment Should They be Read Miranda?

Those convicted of federal sex offenses might need to be. "Anything you say can and will be used against you in a court of civil commitment."

The same yellow sweat shirt at each robbery?

Can you say modus operandi, boys and girls? I knew you could.

Lawrence is feeling sorry for DUI prosecutors

Whatdoyamean, he's being disingenuous?

End of Career for Abu Gharib Officer

Well, actually, his career was finished before this conviction, and they did let him off of the real charge.

Never Get Busted

Yeah, that video really helped.

Federal Sentencing Guidelines and Policy Disagreements

What policy reasons might succeed.

28 August 2007

Defining Reasonable Doubt - Round 2

In response to my post on defining reasonable doubt, Neil wrote an email and offered a possible definition:
Even if this was the person you loved most in the world, you would know in your heart of hearts that they were guilty and that no other explanation was possible.
Well, if I were still a defense attorney I'd love that instruction. As a prosecutor - not so much. As I read this, it changes the standard to beyond any doubt, not beyond a reasonable doubt. In the second clause of the sentence this could be fixed by adding "reasonable" between other and explanation (although this makes the explanation somewhat circular).

The first clause strikes me as raising the defendant too high in the eyes of the jurors. A juror should start from an objective point of view. If no evidence is presented the presumption of innocence is a default in the courtroom which would require a finding of not guilty. However, the jurors should start out not favoring either side and input and/or subtract evidence until it either does or does not reach the level of proof beyond a reasonable doubt. Nobody starts out neutral with a family member. In fact, experience teaches that often loved ones cannot believe that their brother, son, daughter, husband, etc. is guilty no matter how overwhelming the evidence.

If we went back to using a positive definition of reasonable doubt I think the two argued over in the prior note would be okay:
an abiding conviction of the truth of the charge

or

an abiding conviction to a moral certainty of the guilt of the accused
Although, I must admit to some trepidation over how a jury might handle "moral certainty."

In the end, I think that the way Virginia handles reasonable doubt, by announcing to the jury what it is not and allowing the jurors to decide exactly what it is, works about as well as could be expected and I doubt the jury worries as much about all the legal technicalities we lawyers argue about. They know it's supposed to be a high standard in order to convict someone, no matter how we word it.

Off Point: The LA County Fair

These are hilarious. I particularly like the one on the bottom left.

I know I got this from another blog, but lost track. If anybody wants to take credit for the lost work time spent watching the videos feel free to take credit in the comments.

Arrrrgg!!

None less than a judge has reported to me that my rss feed is not working (great, just great, now I can't bad mouth judges here anymore - that takes about 90% of the fun out of blogging).

Anyway, it's not and I'm not sure why. If I replace the format with one of Blogger's awful looking generics it works, so I'm pretty sure it's something in the brew of half understood html I use to make this thing work, but I can't for the life of me figure it out. Hopefully, I'll have time to look this weekend. Until then apologies to anyone who actually tries to read this thru rss.

27 August 2007

More on the Contempt Sanctioned PD and My Opinion

I linked to a bunch of posts about this previously.

Here we find out that there were two witnesses in court for the case.

I've only seen one article which supports the judge, written by a man who tells us he's never set foot in a courtroom:
[L]et me hasten to disabuse you of that sympathy by informing you that public defenders (many of whom are actually third-year law students) are presented with far more serious cases, under similar time constraints, every day. And, moreover, they invariably provide their clients wholly-competent representation.

More importantly, however, if every public defender needed more than 24 hours to prepare for a misdemeanor assault case, the wheels of the US criminal justice system would become hopelessly clogged.
John, at Law of Criminal Defense, is unimpressed.

My Opinion:

Yes, some assault and battery cases can be handled in less than a day, or less than 2 hours or (assuming a competent, experienced defense attorney) in less than 20 minutes. That may even be the majority of assault and battery cases. Any defense attorney who has done indigent defense will have handled more than a couple cases wherein the defendant didn't bother to contact him for the two months he was assigned before trial and the attorney has had to handle the case on the fly the morning of trial. However, there are also cases which need serious investigation, subpoenaing witnesses, interviewing the officers, and negotiating with the prosecutor.

The thing is, the judge can't sort out which case is which from where he's sitting on the bench. I'd be more sympathetic to the judge if he had continued the case and nothing was done which couldn't have been done on the day originally set (no defense witnesses, no physical evidence, when asked prosecutor says no prior negotiation) and then he found the defense counsel in contempt. I would be especially sympathetic to the judge if there was a pattern of doing this, particularly when the prosecution had it's witnesses in court (the thought being that it might be a roll of the dice to see if the prosecution can get the witnesses to court more than once). However, the judge did not handle the matter in this manner. Additionally, if this is actually a policy in place in the PD office and the PD in the courtroom is doing what the guy who can fire him has set down as carved in stone policy, the person who should be found in contempt is the person who is responsible for the policy - that's the head PD, not the guy in court.

Now, that being said, let me go further and say that I find some of the things I've read make me suspicious of the PD and his office as well. The thing I keep reading all over the place about him not asking for a continuance. Some sources seem to intimate that he didn't talk to the prosecutor or do anything to see if he could prep the case. I don't know what the PD did or did not do. However, I find it interesting that everybody reports that he "refused to announce ready" rather than made a motion to continue. The effect is the same, but if you announce "not ready" to a judge who is determined to go forward it's much more theatrical and in your face. It makes the story so much more newsworthy and, by some miracle, a member of the Fourth Estate happened to be there in the afternoon after the judge had continued the case for a couple hours for the defense to prepare itself. One might even think that the PD was purposefully acting in a manner meant to trigger this behavior in the judge in front of the reporter.

This is obviously part of an ongoing conflict between the judge and the PD's office. There's no love lost here and, from what I can tell, it doesn't look like either has clean hands.

ABA Hits

Suddenly I found my blog getting a bunch of hits from the ABA. A little concerned, I went over to see what was going on (with the luck I've had lately, it could have been something like a letter from the President telling young lawyers not to be like this bum). Thankfully, it turned out that the ABA has linked me.

Thanks guys.

And remember, now that I've said written about the possibility of the ABA saying bad things about me it's now a copyrighted idea and if (in the ultimate proof that God has a sense of humor) I ever get nominated for a federal judicial position it would be a violation of my copyright to say anything about me not being qualified.

26 August 2007

Texas v. Europe

"230 years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of self-determination. Texans long ago decided that the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens. While we respect our friends in Europe, welcome their investment in our state and appreciate their interest in our laws, Texans are doing just fine governing Texas."

via Instapundit

Those called before a federal grand jury have a right to read transcripts of their own testimony

"[T]he Government is concerned about grand jury witnesses (or their attorneys) who disclose information to other grand jury witnesses (or their attorneys) with the purpose of obstructing the criminal investigation. The Government identifies joint defense agreements among attorneys as a threat to the integrity of the grand jury process. But denying witnesses access to their own transcripts to help prevent witnesses from talking to others makes little sense to begin with – and makes even less sense given that grand jury witnesses are under no legal obligation of secrecy. A grand jury witness is legally free to tell, for example, his or her attorney, family, friends, associates, reporters, or bloggers what happened in the grand jury. For that matter, the witness can stand on the courthouse steps and tell the public everything the witness was asked and answered. The secrecy rules therefore are no justification for denying witnesses access to their own transcripts."

via White Collar Crime Prof

Make there be some speed bump against Bar complaints

I agree with most everything Norm says here, except that perhaps the amount of money one should have to pay to file a Bar complaint might be set at $50 for indigent defendants.

Bar complaints, in my experience, mostly seemed to come from a thought that if the lawyer can be burnt the defendant will get another shot. They seemed to start with people who got over 2 years and were almost a certainty when I had a client who got over 5 years. If there were a speed bump, like a $50 fee, perhaps they would file the habeas which they really want instead.

The Vatican Speaks on the Death Penalty

"When the state in our names and with our taxes ends a human life despite having non lethal alternatives it suggests that society can overcome violence with violence. The use of the death penalty ought to be abandoned not only for what it does to those who are executed but for what it does to all of society."

via Mirror of Justice

California: 82 minutes = 4 days

Picture the math being used by the California Justice System if it were applied to your everyday life:

Friday 5:41 P.M. "Honey, it's your boss on the phone."

"Thanks. Hey John, what's up? You want me to come in to work? But I just got home! What do you mean this is California and 41 minutes is actually 2 days? The court says so? Okay, it'll take me 30 minutes to get there, so I'll see you after lunch tomorrow."

Escape from Prison and Try to Hide Behind the 4th Amendment

But the court doesn't buy it.

Three Weeks Later is Not Exigent

Girls find hidden camera attached to a computer. Three weeks later they tell the police. The police don't get a warrant and the court tells them they should have.

24 August 2007

Here We Go Again!

Massive number of things to point ya'll to and minimum amount of time. Enjoy the 30 or so posts I'll try to get up before I do the work thing today.

Tasers

When should they be used?

I've weighed in on this previously with this post.

Cut and Paste Not Good Evidence

I can't say I'm surprised by this.

Great, a New Drug

Has anybody heard of Salvia divinorum?

A Bird of Another Feather

Always remember, and never forget, you cannot import black sparrowhawks.

Connecticut: No Statute of Limitations on Sex Crimes

But there are still some limitations.

Well, I Guess He Won't Need a PD

Not after the Minneapolis City Council paid him $110,000 while he was in jail for murder charges.

Imagine being the officer . . .

. . . who let the prisoner get the drop on you and lock you in a cell so he could escape.

Of course, the prisoner wasn't all that swift either. He left the officer with his cell phone.

This is going to make things difficult in court

A judge testifies against officers with whom she clashed as a prosecutor.

The Breathalizer Code

A Florida Court says give it to the defendants or we will fine you out of existence.

A Kentucky court says ignore the Florida court.


Hmmm . . . Didn't we establish a federal judiciary to handle things like this?

40 Years Later, a Murder Charge

Okay, I understand in the era of modern medical treatment that they year and a day rule has passed the point of usefulness. However, prosecuting a death which occurs 40 years after the shooting is a bit of a stretch.

Racial Differences at Sentencing

It seems Whites don't get less time, they are just less likely to get time.

Breath Test Thrown Out . . .

. . . because if you breath into it too long it taints the result.

Why Not Hang the DUI's Who Kill Someone?

It's an interesting question, and it becomes more interesting if the States which are passing death penalties for rape get their statutes found constitutional. In a rape there is a survivor. In manslaughter there is a dead person. How can you justify killing one and not the other?

Big Brother is Watching

At least in Cali.

Community Impact Statements over the Net

It's an interesting concept, but I keep picturing some of the more interesting complaining witnesses I've dealt with spending day and night filling page after page with impact information and getting upset when I use someone else's three paragraph, concise statement.

Should we let sleeping lawyers lie?

Gideon points to a case in NY.

Things you wish you could say

Of course, you can't really say these things, but sometimes you are sorely tempted.

How has the Anti-terrorism and Effective Death Penalty Act affected Habeas?

A break down.

Are Police in the U.K. Useless?

Hey, it wasn't me who asked . . .

Person of Interest

Is he a suspect?

A Police Officer in the Aftermath of a Mini-Riot

"I mention the brawl for two reasons: the first is that, having spoken to about five key witnesses over the phone, there’s absolutely no prospect of getting any conviction. The offender is variously described as wearing a white or black top with dark or light trousers, his build ranges from medium to stocky, and he is somewhere between 5’ and 6’ tall. Oh, and he's got blonde/dark/no hair. The witnesses describe themselves as either 'drunk' or 'merry.' The circumstances are generally agreed to be, '…and the next thing I knew, they were all fighting.'"

"The second reason I mention this fight is that it's the parents are just about to make a complaint about me and I don't need the paperwork right now. The kids seem to be fairly realistic about the whole thing, but the parents think it's my fault that they all got drunk and started fighting."

3 Wheeler

A drunk guy driving his car on 3 wheels isn't all that hard to find. Just follow the gouge marks in the road until you find the place where his car finally gave up the ghost.

Bad Search Warrant

An affidavit alleging someone was involved in a drive-by shooting does not justify searching his home. This is so clear that Leon "good faith reliance" does not apply.

Get a Good Result . . .

. . . after the client tried to commit suicide.

A Place to Sleep in Prison

If you are homeless and get arrested for sleeping at the library you could always ask the judge to keep you in jail.

21 August 2007

Jury Trial Today

For a violation of this statute:
§ 18.2-238. Buying, etc., pig iron, etc., with intent to defraud; possession; evidence of intent.

If any person buy or receive pig iron or railroad, telephone, telegraph, coal mining, industrial, manufacturing or public utility iron, brass, copper, metal or any composition thereof with intent to defraud, he shall be guilty of a Class 6 felony. Possession of any pig iron or railroad, telephone, telegraph, coal mining, industrial, manufacturing or public utility iron, brass, copper, metal or any composition thereof, if bought or received from any other person than the manufacturer thereof or his authorized agent or of a regularly licensed dealer therein, shall be prima facie evidence of such intent.
It's amazing how many people there are out there involved in stealing copper wire from various sources (mines being one), burning off the covering and selling it for scrap.

20 August 2007

Lying to keep people from getting the death penalty

You may view it as noble, but if you feel that you must do it you don't have grounds to complain when others don't come to your aid when you're caught. If you feel that you are morally allowed to do anything to stop the death penalty then, when others who will continue the fight denounce you after you've been caught they are morally allowed to do anything to stop the death penalty and that includes dropping you like a hot potato so that their continuation of the fight is not tainted.

It's a vicious circle, isn't it?

A Judge, PD, One Day, and Contempt

The big story around the crimlaw blawgospere has been a judge who gave a PD a case and the next day found him in contempt because he would not announce ready.

Killing with a Rattlesnake Box

"The plan was to build a wooden box to hold the snakes and 'the lid was to be built to allow Sowash's legs to be put inside but not pulled out.'"

I think the police would have probably suspected something: "Chief, there were 15 snake bites and gashes around his legs like they were being held in place despite his intense efforts to pull them free. I think there may have been foul play."

Officer Arrested . . .

. . . for "defeating the ends of justice."

Judge Breaks the Law

You'd think a judge would have a better idea of how to defraud an insurer.

Jailhouse Lawyers

Are they better than the lawyers outside the bars?

Stealing a Plunger

Windy about had me half conviced to move to Chicago because of the hot girl factor, but if theft is this bad, I'm not so certain anymore.

Cop Carding

Applying the law to an officer may not work out well.

Constitution? We don't need no stinkin' Constitution!

At least, not if someone dies.

Shoes for Guns

Come one, come all! You too can trade your gatt for Asics.

16 August 2007

A Whole Lotta Posts

Over the last few days I've built up bunches and bunches of things I want to link to. There are too many to put in one post so I'm going to try putting in a post of its own. I think there'll be about 200 when I finish. Enjoy!

_

No.

The 7th Just Doesn't Understand

Or at least it doesn't believe that all money is drug money.

Gonzales Good for Defendants

We point, you decide.

Not exactly the worst police behavior I've ever seen

In fact, the arrest seems kind of innocuous.

BTW - What the guy is screaming in Arabic at the end is "Mohammed is the Uber Prophet of God. There is no God but God."

You Can't Fire People Because of Their Skin Color

Not even prosecutors.

Proof that Liberals and Conservatives can get along

Jon Katz lauds Judge Rodgers.

What happens if an expert witness testifies contrary to his wife's wishes?

BTW - the wife is the defense attorney.

Prosecutorial Standards

What's the standard if a prosecutor takes part in an interrogation?

Exacerbating the Pain of Losing

It's bad enough if you lose - it's worse if somebody tries to kill themself because of it.

Balancing

So, if the denial of the confessions are only slightly more believable than the confessions . . .

64 Juries at One Time?

Remind me not to become a prosecutor in that State.

Fashion Tips

Simple Justice comes out against the black tennis shoe as part of the court ensemble.

All Money is Drug Money

It seems that no matter where you get money from it is tainted by drugs.

British Perception of US Prisons

They ain't good.

Of course, judging from the comments, they don't seem too happy about the way things work there either.

$104 Isn't Enough

If you want me to take the chance that I'm going to flush my whole legal career down the drain you're going to have to give me more money than $104 to dismiss your case.

Comic Book Nudity

Having read a few comic books, or as those who don't want to look immature label them "graphic novels", in my life, I gotta say, it is usually pretty clear which ones would be appropriate to hand out to trick-or-treaters.

He Said What About His Client?

I always tried my best not to tell the judge exactly what the nature of the conflict I had with a client was. Most judges were pretty good about it; if you weren't asking to be removed from cases every other week they didn't press. I don't think I ever said something like this where the press could hear it.

The Pro Se Bar

I think the most painful moments I've seen in court have been sitting in a courtroom waiting for a pro se defendant to finish. Usually, what should have been a 5 minute hearing drags on and on and on . . .

So, I understand this sentiment.

I do have to say that I have seen some pro se defendant's who do okay in court, but that's usually a sign that they have been there enough times to know criminal procedure. Although, that doesn't seem to help with the guys in prison. They get a field trip every time they come to court, so even the intelligent ones who know what they are doing file tons of non-pertinent motions (usually because they want to re-try the case that put them in prison).

Ohio: False Report and the Conviction Based Upon It

Can a woman be coinvicted of a false report and a man be convicted upon the facts alleged in the false report?

In Ohio they can.

Gotta wonder if it's constitutional . . .

. . . to give the government the right to decide if government actors are prosecuting correctly.

Why Can't You Work for Free?

Brian tries to explain why he cannot work without getting paid.

Sorry, but I doubt it'll work for you.

Survival Training the Hard Way

Think the 10 deputies left out overnight while they were hunting pot in the woods might have been on the sheriff's *!@#@ list?

They're 18+

I say again: If they are 18 they are the ones breaking the law, not their parents, not their school administrators, not their fairy godfathers.

Of course, this doesn't apply if the school itself is having keggers without carding or something similar, but leave the hazing liability between the school and the insurance company. Or, better yet, impose a rule that an academic institution is not responsible for the acts of adult students either civily or criminally unless it actively drew the student into that activity (passive non-interference with acts between adults should not be enough).

Prison Instead of Mental Institutes

Yep, anybody who has done this work for a while can tell you that there are a lot of mentally disabled people in jails or prisons. Oh, they know the difference between right and wrong and are technically competent, but that doesn't mean they don't have serious mental problems.

Whites, Black, the Death Penalty, and the Press

There has been concern raised over how the press is covering a white family's murder as opposed to the same events happening to black families.

It's true; we've all seen the press do it before. I'm not sure a judge would allow that as mitigation though.

15 August 2007

14 August 2007

No Matter How Long You Practice, There's Always Something to Learn

As long as I've been practicing, judges have been reducing DUI's to reckless driving. In fact, most of the time when the judge does that it's considered a victory for the defendant. Imagine my surprise when I found out last week that judges are banned from doing that.

Offender was originally charged with DUID. However, the under the influence part was unprovable. Since there was apparently enough evidence to prove driving "while in too bad a condition to drive", the judge reduced the charge to reckless and convicted. All of this is stuff I learn from the court record as I did not try the original charge.

Then Offender appealed in order to get his guaranteed de novo trial. We come to court on his misdemeanor appeal and his attorney tells me that the judge couldn't do that - it's not allowed. I'm skeptical, because I've seen it done as long as I've practiced. So, I go look it up and, whatdoyaknow, defense counsel was correct.

It's all based on Virginia code sec. 19.2-294.1:
Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and with reckless driving in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852, growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.
Apparently, sometime in the forgotten primordial ages of Virginia courts, the Virginia Supreme Court ruled that a person could be convicted of both reckless driving and DUI at the same time because they have different elements. The General Assembly took exception to this and passed 19.2-294.1 (although, until 2004 it just said reckless driving and did not state a specific statute). Thereafter, the Courts Appellate Virginian did not admit theoretical defeat while conceding legal defeat. They decided it was the act of driving which was the common act which tied the two charges together under the General Assembly's statute, but that they still had separate elements. Which means that reckless was still not, despite the General Assembly's apparent attempt to make it so, a lesser included in DUI.

In 2004, the General Assembly limited this exception to only the general reckless driving statute and therefore left us in a position where a DUI could be charged with the remaining reckless driving statutes:
46.2-853 Bad Brakes
46.2-854 Passing on Curve or Crest of Hill
46.2-855 Driving with View Obscured
46.2-856 Passing Two Vehicles at Once
46.2-857 Driving Two Cars Side-by-Side in One Lane
46.2-858 Passing at a Railroad Crossing
46.2-859 Passing a Stopped School Bus
46.2-860 Failing to Signal
46.2-861 Driving too Fast For Conditions
46.2-862 Driving 20 mph over the Speed Limit or 80 mph
46.2-863 Failure to Yield Right of Way
46.2-865 Racing
Of course, the judge did not reduce the DUID to one of these, and clearly couldn't because each has it's own separate element to prove which would not be a part of DUI.

So, I ended up making a motion for nolle prosequi so that the officer could go swear out the proper warrant and we can all come back to court in a month or so and do it in a procedurally correct manner.

After having looked at it for a couple days, I'm not sure I had to do that. It was the procedurally safe way to handle the situation, but I think the 2004 amendment might have actually trimmed the reckless part of the statute to the point that it now is a lesser included in DUI. The only thing that concerns me is that some of the Appellate Court cases, in order to stretch to find different elements, have stated in obiter ditcum that DUI's can occur without reckless driving. I think that is non-binding and just plain bad logic. Of course, driving under the influence of intoxicants is reckless - that's why there's all that evidence introduced at trial about how the offender's coordination was screwed up.

Hmm . . . it'll be interesting to see if anyone fights this fight in the future.

13 August 2007

Dismissed with Prejudice

Times were, everyone in Virginia understood that if a charge was "nol prossed" (motion for nolle prosequi) it could come back, but if it was dismissed it was gone forever. Of course, this was a different terminology than the feds use and apparently it confused some people (after all, how many of us were taught the fed rules of procedure at law school rather than the proper common law ones which Virginia, that rock of the common law, has maintained?).

So now we have a statute setting out trial procedure as to a dismissal:

§ 19.2-265.6. Effect of dismissal of criminal charges.

No dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice.

(2007, c. 419.)


Why did this change come about? Maybe it's because the General Assembly meets every year and doesn't have enough important work to fill its time with. Maybe it's because someone lost a case when they said motion to dismiss rather than motion to nol pross. Whatever the cause, it confuses judges if you say it. Go on, I dare you. Walk up to a bench in the Commonwealth and ask for a dismissal with prejudice. The judge and attorney on the other side will give you the strangest looks . . .

Winning an Appeal in the 4th on Guns

All it takes is a law student.

10 August 2007

The Cubs are the Cubs Again (in Japan)

A Japanese court has decided that the Cubs can use their symbol in Japan.

Thank goodness! I've been losing sleep wondering what was going to happen.

Yes, I changed the links

And I'll probably be doing some more changes before I'm through. The blogs I've linked to as prosecutors aren't all posting about criminal law, but not many prosecutors are so I included them on the hope that every so often there'd be something (Brian Patton, c'mon down, you're the next contestant on the Post is Right).

I did away with the daily read section. The blogs I most often read are at the top of the section they're now in. Most of the time I'm reading by rss feed / My Yahoo! now anyway.

I pulled the BigWig blogs out of the long list not so much because they are the BigWigs, but because they are consistently publishing with good quality.

A number of blogs in the long list appear to have faded away. I don't have time now; I'll have to go in and fix them soon.

09 August 2007

Around the Web

1) Will the 4th Circuit become a bastion of liberality?

2) Video of an offender trying to stab the officer who is searching him, at the station. BTW: No, I can't translate the language they're speaking - all I know is it ain't Merican.

3) Most juveniles adjudicated delinquent because they are not innocent of a felony (pretty sure that's the right language) stop committing crimes before they hit their 30's.

Gotta say I don't find that in the least bit shocking. Common experience tells us that most males calm down sometime in their mid to late 20's. If we really wanted to cut the crime rate we'd just either arrest all males at 16 and hold them until 28 or force every male to join a different structured environment (like, oh, the military) for 10 years at age 17. The crime rate would plummet.

4) An officer at his first murder scene.

5) The "Hello Kitty Pink Armband" punishment for bad officers.

6) We don't really have expungement here in Virgina (you can expunge things you've not been convicted of after a year). However, many States do. The question is whether it still does what it's supposed to.

7) 30 years for a white collar crime? What'd she do, steal the Liberty Bell?

8) What happens when a prosecutor is sleeping with a defendant's mother?

9) What? It costs money to put people in prison?

10) Ummmmm . . . Mark, we do have jury sentencing in Virginia. However, we never gave them the power to impose probation to begin with.

11) States have the ability to opt in to rocket habeases?

12) FBI stoners?

13) Claiming police officers raped you is hard without evidence and when the officers are being tracked in a different place at the time.

14) Parakeet killer gets 30 days.

08 August 2007

A W&L LawProf Blogging

Whadoyaknow!?! There's a law professor from good old W&L who's blogging over at Concurring Opinions (even if they forgot her for a while).

Melissa A. Waters wasn't at W&L Law when I was getting learned there. OMG, look at that CV. That would give anybody an inferiority complex. It makes my resume look kinda pitiful. And, believe you me, I went thru and tried to make my resume as impressive as possible before I posted it after that; it still pales in comparison.

She looks like an interesting person and probably a great professor. I'd say that I'd like to meet her, but for two things. First, looking at her record, I suspect she is several orders of magnitude intellectually above this poor bumpkin; I'd hate to make her have to spend several painful minutes trying to being polite while I was saying things which roughly translated as "UG! Ken like law. UG! Ken am good at it" ('cuz, ya know every guy has to puff his chest in female company). Second, considering my life history and her works, I suspect that if we were in the same room for too long one of us might spontaneously combust. Of course, assuming God is just, that probably means the short, round, bispectacled guy with the shaved head would go boom. And, if I blew up all my creditors would be orphaned. Can't have that.

07 August 2007

So, How Should We Select a Judge?

A while back, SW Va Law quoted a popularly elected judge saying that he makes judicial decisions not because they're right, but because they will get him re-elected.

Of course, that's disturbing. However, if we assume that this is a normal pattern of action we must assume it in any system wherein the judges are periodically reviewed. In Virginia we have our judges selected by the General Assembly. If a popularly elected person is affected by what the populous thinks, a judge chosen by the general assembly would be affected by those winds which blow from the legislature as well. I believe I saw this a few years back when a judge was having a terrible time getting re-appointed because he was viewed as being too lenient on DUI's. The judges were following that closely and, although it may have just been my impression, everybody tightened up. Was that the will of the people? I'm not so certain. I think the problem with judges appointed by the legislature will always be that legislative bodies are disproportionately influenced by lobbying groups and therefore pass on that disproportionate influence to the judges they choose and periodically re-affirm.

Perhaps the biggest flaw in the legislative appointment/re-appointment system is that it can cause judges who are entirely out of touch with the locality to become the judge. In Virginia, depending on what part of the Commonwealth is dominant at the moment, this can mean the rest of the Commonwealth imposing conservative judges on the People's Republic of Northern Virginia or Northern Virginia imposing liberal judges on us unheeled barbarians in the hinterlands.

So, what's the solution? I'm not certain there is one. Every system I've seen has flaws. Gubernatorial appointment and reappointment has almost exactly the same flaws as legislative appointments. Some are enamored with the retention system, but, in my view that system pretty much does away with any accountability. The only way the judge would ever be held "accountable" is if a big case is decided close enough to election time for press coverage to linger in the minds of the people. I'm also not particularly thrilled by the idea of committees choosing the candidates. These committees will be dominated by one group or another and reflect that group's view (pick a group: ABA members, or BigLaw types, or local bigwigs, etc.)

That all said, how do I think that judges should be chosen? Well, it's an imperfect, incomplete thought, but maybe something like this:

Supreme Court Justice: These should have life tenure to remove them as much as possible from political influence. A committee composed equally of members appointed by Bars which are non-general in nature (prosecutor bar, defense attorney bar, plaintiff's bar, insurance defense bar, etc. - only bars concerning a specific area of State law) and that committee will report 4 people to the General Assembly. The General Assembly reports one of these people to the governor who has the option of approving or denying him and then the General Assembly can override that with a 2/3 vote.

Appellate Court Judge: These should have a 10 year, renewable tenure. Nominations should be tied to a region of the Commonwealth. Initially, they would be offered by the governor and approved by the General Assembly. At time for re-appointment 2/3 of the General Assembly must vote to remove the judge from office.

Circuit Court: 10 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit. Selected initially by the Senate. At time for re-appointment the majority of the General Assembly may vote to remove from office.

General District Court: 6 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit (in Virginia district court judges ride the same circuit as the circuit court judges). Initially selected by House of Delegates. At time for reappointment the majority of the General Assembly may vote to remove them from office.

I think this sort of system would balance the influences on the courts by various political entities. I also think it puts people in the appellate courts without too much fear for their jobs so that they can make decisions as a truly independent 3d branch.

Now, all I have to do is figure out how to get Virginia to let me single handedly rewrite the Commonwealth's constitution . . .

06 August 2007

Civil Penalties for Driving Offenses



When the new "civil" fines were added by the General Assembly this notice popped up all over the courthouse (this one was in the elevator).

And now, a judge in Henrico has been the first to find these fines unconstitutional. The case is Commonwealth v. Price.

It was found unconstitutional in Richmond too.

02 August 2007

Prosecutors on the Web

Way back when I started my blog I think there were maybe two blogs dealing with criminal law: Crimlaw and Talk Left (which even then was evolving into a political blog). At the time most of the interesting blogs seemed to be done by clerks or students. Of course, over the years things evolved. There are now quite a few criminal law professors and defense attorneys in the blawgosphere. However, there is still one group you don't see too many of: prosecutors. Having worked here for a little less than a year, I think I can see why that is. It's interesting how much of the work I do is prospective in nature or touches on political areas (there's lots of politics in a county with a county government, an independent city, and 5 independent towns). All of this is basically off limits, for fairly obvious reasons.

I am in the unique position of having been hired by a Commonwealth Attorney who had full knowledge of CrimLaw and being retained by a Commonwealth Attorney who also has full knowledge and, while I don't think he reads this very often, has said he will not interfere with CrimLaw. I appreciate the trust. However, I doubt that I would have started this if I had been employed in a prosecutor's office at the time. The prospect of having a "macaca" moment would have probably loomed too large.

With all this in mind, I thought I'd look set out a list of current prosecutors whom I know to be blogging:

Brian Patton - Author: Brian Patton - Mostly a political blog, but Brian's a brand spanking new prosecutor now. Welcome to the other side of the bench.

Seeking Justice - Author: Tom McKenna - Politics, Religion, and the Law. May be dead or dying since Tom has not posted in almost a month.

Judging Crimes - Author: Joel Jacobsen - The point of view of a government appellate lawyer. Technically, he works for the Attorney General, but it's still criminal law advocacy from this side of the bench so I include him.

Issues and Holdings in New Mexico Law - Author: Kirk Chavez - A fairly new blawg which is concentrating on the holdings of New Mexico appellate courts. Well written.

If anybody knows of any others leave me a comment or drop me an e-mail.

Reactions to the New Layout

Well, actually they're reactions to the new picture . . .

I just checked in on your blog- and you've got a real Kevin Spacey/Lex Luthor thing going on... looks cool. (Steve)

I love the chrome dome look. I think of three people when I look at you: G. Gordon Liddy, Steve Benjamin, and Lex Luther. (Jason)

I guess they're better comments than the first thought which popped into my head when I shaved it: "Gee, Brain, what are we going to do tonight?"

01 August 2007

Reasonable Doubt, The Virginia Version

A couple days back Mark was writing about the ways that different State courts handle jury instructions as to the definition of reasonable doubt. Looking at this, I thought I'd post the usual instruction given in Virginia jury trials.

----------- ---------- ----------


The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt. You shall not speculate or go outside of the evidence to consider what you think might have taken place, but you are to confine your consideration to the evidence introduced by the Commonwealth and the defense and unless you believe, upon a consideration of all the evidence before you, that guilt of the defendant has been proved beyond a reasonable doubt as to every material and necessary element of the offense charged against him, then you shall find the defendant not guilty.

The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt. You must limit your consideration to the evidence introduced, and you are not to go outside the evidence to hunt up doubts, nor must you entertain doubts that are speculative or conjectural. If, upon a consideration of all the evidence, you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you shall find him guilty.

----------- ---------- ----------


If you read through the instruction, you won't find a definition of "reasonable doubt." It bounces all around it, bracketing it on one side by stating it isn't a lower level of proof and on the other by stating that it isn't absolute, God given, unshakable certitude. It's something of a definition in the negative.

To my knowledge, the Virginia appellate courts haven't banned positive definitions of reasonable doubt. However, they have strongly discouraged them:
It should be remembered, however, that on numerous occasions we have stated that instructions attempting to define reasonable doubt should be discouraged as it is highly probable that any definition devised would be less illuminating than the expression itself.

Strawderman v. Commonwealth, 1959 Va. (no. 4928)
In that case the court was refusing to overturn based upon a jury instruction defining beyond a reasonable doubt as "an abiding conviction of the truth of the charge" (appellant claimed it should have been "an abiding conviction to a moral certainty of the guilt of the accused"). This case is cited in more modern times as standing for the proposition that
We expect jurors to understand the meaning of "reasonable doubt."

Shaik v. Commonwealth, 2005 Va. App. (no. 2614-03-4)
So, I guess that technically I could offer an instruction that positively defined reasonable doubt and if I got it past the trial judge it would stand on appeal. However, I suspect the older judges would shoot me down because they remember the case law and the younger judges would shoot me down because they are all lectured half to death when they go to "judge school" about the evils of departing from the instructions given in the model book, no matter how many authorities a party can cite for an instruction (which is clearly wrong and I wish they would stop telling judges that - even the model jury instructions decry themselves as stand alone authority).

However, in the end I'm not sure anything is gained if the positive instruction is offered rather than the negative one. Perforce, both are vague and neither will ever be entirely satisfactory. I didn't like the current instruction as a defense attorney and I don't like it as a prosecutor either; yet, I don't see myself as being happy if I had to use the instruction give in the case above either. In the end, with the vagueness involved in either instruction, it is the jurors who must go back in the back room and decide for themselves where they will draw the line as to reasonable doubt.