11/30/2007
Metal Theft
2) Passing more laws isn't stopping the theft.
11/30/2007
Makes No Sense: No Electronics in Court
11/30/2007
Strange, Silly & Interesting
2) If you steal $20 worth of pizza in Eastpointe, Michigan they will summon SWAT to break down your front door.
3) Grandma / heroin kingpin fesses up that she hid the heroin on her grandchild.
4) The FBI gets its man, errr boy, in New Zealand.
5) Hey kids, if you sell your debit card and pin you will get caught.
6) Grand Larceny Tree.
7) In the UK organized crime operates on a whole different frequency: stealing discarded clothes.
8) Hiding under the floor won't fool the cops.
9) Texas guards now look fashionable.
10) Want to catch America's Top Ten? Draw them as cartoons.
11/30/2007
We Just Ain't Gonna Arrest Druggies
11/30/2007
Reports from the Front: The Pot Rebellion
2) The Grinch got this guy's Christmas present.
3) And the Feds are still shutting down State sanctioned marijuana
11/27/2007
Yes, He Is Guilty
He has a blog, Gruntled Center, which has been up for a while now and it's probably the only non-blawg that I try to make a point of checking in on fairly regularly. Its topics range from sociology, to religion, to politics, and even law. Most of the time I'm not really qualified to comment upon the subjects he raises – not that this always stops me (I am a blogger after all). However, last week (and in September also) Dr. Weston commented upon the trial and conviction of Warren Jeffs for rape. He implies that the conviction is on less than solid grounds and opines that it is "iffy" and "stretches the rape law beyond the plausible." This falls well within the area of my supposed expertise, so I thought I'd try to explain exactly why Jeffs is guilty.
One caveat: I am not an expert on Utah law so I will mostly rely on Virginia law and general legal knowledge to explain why Jeffs is guilty.
Facts:
Warren Jeffs is the leader of a religious group. As such, he ordered a 14 year old girl to marry a 19 year old boy. He was charged with rape as an accomplice, convicted, and sentenced to 10 years to life (two consecutive 5 to life sentences).
The Objection:
"What's wrong with this trial is the charge. Jeffs is charged with being an accomplice to rape for ordering an underage girl to marry, and presumably have sex with, a man who was a legal adult. The charge stretches rape law beyond the plausible. The prosecutors might lose, and Jeffs would slip away. Worse, they might win. If counseling people to marry, or return to a marriage, which presumably would include sex, could be legally construed as assisting rape, then anyone offering marital advice could be liable for prosecution."
Explaining the Conviction:
First of all, let's distinguish this case from marriage counseling. There are two factors which clearly distinguish the case at hand. First, there was no counseling here – it was an order. Second, and more important, is that the girl appears to be under the age at which she can consent to sex; this age varies from State to State, but 14 is almost always under the line (in Virginia sex with a 14 year old is actually “carnal knowledge” - sentence: 2-10 years).
Virginia law varies from the common law norm in that a person who caused a rape is a principal in the first degree (actual actor). However, since Jeffs was charged with rape as an accomplice, it appears that Utah has maintained the common law doctrine that only the person who accomplished the intercourse is a principal in the first degree.
In Virginia accomplices are divided into two groups: principals in the second degree and accessories before the fact.
Principle in the Second Degree
A principal in the second degree is one who, with the requisite mental state, is actually or constructively present at the commission of the crime assisting the perpetrator in its commission.Accessory Before the Fact
An accessory before the fact is a person who, sharing the criminal purpose of the perpetrator, encourages or assists in the commission of the crime, but is absent from its commission.Definitions from Criminal Offenses and Defenses in Virginia
I'm going to assume that Jeffs wasn't present when the sex took place. This makes it unlikely that he is a principal in the second degree. While being guilty as a principal in the second degree doesn't require actual presence, its constructive presence seems to require a contemporaneous act like being a lookout or getaway driver. Overall, it's an ill fit.
On the other hand, accessory before the fact fits like a glove. Assuming a traditional understanding of marriage, consummation is a part of marriage. The 14 year old girl is unable to consent to sex. The criminal purpose of her husband is to consummate the marriage. By ordering the marriage, Jeffs is purposefully assisting in the commission of the crime even though he will not be present when it occurs.
That's pretty solid ground for a conviction. Under Virginia law the punishment for being either type of accomplice is the same punishment as being the actual actor because of the causal relationship. I don't know if the same is true under Utah law.
Now, before some of you legal eagles out there start pointing out the potential flaws in this fairly basic examination of the law in this type of matter, let me fall on my own sword first. I see three possible major flaws in the analysis above. The first is that Utah's law may set the statutory rape age below 14. The second is that Utah's law may have a marriage exception. For example, under Virginia law if the man marries the 14 year old, she lives with him, and he supports her the case is stayed until she is 16 and then dismissed. The third is that Utah might have an unusually long 5 year proximity rule (most States do not make it illegal for those within 3 years to have sex).
If any of those flaws are true the case becomes far more reliant on facts rather than legal analysis. A conviction would require a demonstration that Jeffs' power was such that there was no possibility that the order to marry – and, by implication, consummate – could be disobeyed. If he had his religious group as tightly under control as Dr. Weston describes this might not be all that difficult a case to make. It would still be a solid accessory before the fact case and it might even rise to the level of a case of principal in the second degree under a theory that when the involuntary sex occurred Jeffs was at that time maintaining an atmosphere in the group which watched out for and condoned the man undertaking the actual act.
Certainly, this is an unusual case and an analysis actually using Utah's statutes and case law would bring variations upon the framework I've set out above (every State seems to deal with accessories a little differently). Nevertheless, there's a solid case here.
11/26/2007
C.S. Lewis, Natural Law, Witches, & the Death Penalty
"I have met people who exaggerate the differences, because they have not distinguished between differences of morality and differences of belief about facts. For example, one person said to me, "Three hundred years ago people in England were putting witches to death. Was that what you call the Rule of Human Nature or Right Conduct?" But surely the reason we do not execute witches is that we do not believe there are such things. If we did – if we really thought that there were people going about who had sold themselves to the devil and received supernatural powers from him in return and were using those powers to kill their neighbors or drive them mad or bring bad weather – surely we would agree that if anyone deserved the death penalty, then these filthy quislings did? There is no difference in moral principle here: the difference is simply about matter of fact. It may be a great advance in knowledge not to believe in witches: there is no moral advance in not executing them when you do not think they are there. You would not call a man humane for ceasing to set mousetraps if he did so because he believed there were no mice in the house."
11/21/2007
Thanks

11/18/2007
Hint: If you're going to sell drugs . . .
11/18/2007
Whodathunkit?
Yeah, I'm shocked too.
11/18/2007
A Judge Caught with Marijuana May Not be Convicted
11/18/2007
Stealing Wire Right Off the Poles
Hopefully, this will not become a trend. I live in a part of the world where copper theft is common and the mountains make it nearly impossible to bury the cable. Of course, the solution could be for the phone company to switch to fiber optics, but I'm not going to hold my breath waiting for that.
11/18/2007
Metal Theft
11/18/2007
Infinite Creativity: Columbia
11/18/2007
Height Challenged?
11/18/2007
Co-Offenders Killed in Robbery = Murder
11/18/2007
Thief Steals Food He Could Have Gotten for Free
11/18/2007
Plumbing for Profit
11/18/2007
The Justice Equation: UK
11/16/2007
Slow & Steady Doesn't Always Win the Race
11/16/2007
OMG: Punishment for the Raped in Saudia
Previous sentence: 90 lashes.
Sentence After the Appeal: 200 lashes, 6 months in jail, & her lawyer's license has been suspended.
11/16/2007
New Zealand: Murder Confession Played on TV
11/16/2007
Don't Steal from a Kenyan Church
11/16/2007
Medicinal Heroin at Home
11/16/2007
Heroin in Magazines
11/16/2007
Somebody Killed De Facto
11/16/2007
Thief with a Heart of Gold
11/16/2007
Civil Remedial Fees Fail in the UK
11/12/2007
Outlawry
§ 19.2-10. Outlawry abolished.So, the first thing that runs thru my head is that this could prove problematic to prosecuting people who have acted outside the law. Things like this must be checked out.
No proceeding of outlawry shall hereafter be instituted or prosecuted.
The first step is a quick run to my trusty old three volume Webster:
Outlawry - 1a: the act of outlawing:the act or process of putting someone outside the protection of the law. b: banishment, exile. c: the act or process of making something illegal. 2: the state of living outside the law.Aha! It seems that while it is possible that outlawry is the act of outlawing an act, the more likely and dominate use of the word is to be put, and live, outside the protection of the law. But wait, that can't possibly be allowed under the federal constitution, can it?
Well, a computer search of federal supreme court cases doesn't yield much. However, Green v. United States, 1958, 356 U.S. 165 is somewhat helpful. For one thing, it tells us that outlawry came from Ye Olde English law and was adopted by the Several States, but not the federal government. For another it gives a quick description of how it worked:
[A]t early English law, courts dealt with absconding defendants not by way of contempt, but under the ancient doctrine of outlawry, a practice whereby the defendant was summoned by proclamation to five successive county courts and, for failure to appear, was declared forfeited of all his goods and chattels. 4 Blackstone Commentaries 283, 319.OK, way back when, if you were a 98 lb. weakling, the authorities summoned you to court for trial by combat against Mongo, the 6'8" man-giant (don't shoot him with that crossbow, you'll just make him mad), and you make the prudent decision not to participate you lost your land. Let's see what that evolved into under Virginia law.
Pulling out my trusty 1873 Code of Virginia, I find this:
When judgement of outlawry entered, or corrected, &c.; what judgment in outlawry to be rendered.That doesn't say anything about failing to appear in court. However, the sections around it are mostly instructions on what to do when criminally charged parties fail to appear in court, so I infer that it is, as the federal supreme court stated, a statute dealing with someone who didn't come to court.
27. Judgment of outlawry shall be rendered by the court of the county or corporation in which the prosecution is, and may be reviewed, corrected or reversed, on motion, or by writ of errorcoram nobis.
28. When a person is outlawed, the same judgment, execution and disabilities shall ensue and be awarded as if he were convicted of the offence with which he was charged.
It's interesting that there seems to be a very serious concern with the possibility of error expressed under Code sec. 27 and that, under Code sec. 28, the remedy seems to have changed from the English version in which lands are grabbed to a conviction of outlawry carrying the same punishment as the crime a person couldn't be convicted of because he didn't come to court.
Basically, it's a failure to appear statute. Don't show up for court to face your bank robbery charge and we can't convict you of bank robbery. We can, however, make a judgment of outlawry and sentence you to 20 years on that instead. We still have a failure to appear statute, Va. Code sec. 19.2-128, but you can only get 5 years under it and must be present when tried - not quite as convenient as outlawry appears to have been.
I wonder why judgments of outlawry were done away with. I see a federal constitutional issue, or two, with that kind of action, but the statute was done away with before the federalsupremes started enforcing the federal constitution against the States.
Anyone out there got any insights? How about knowledge about how this has been handled in other States?
11/07/2007
The Boss Gets Elected
Congratulations, Ron.

Ken Lammers . . . Permalink . . .
11/06/2007
How do you do this?
11/06/2007
Reports from the Front: The Pot Rebellion
2) California may say it's legal, but those pesky Feds could always show up and close your $50 million MedMar clinic and take everything you own.
3) Even the RCMP are busting grow houses.
4) If you are an officer involved in a drug ring you should not rob your partners.
5) Things aren't going to turn out well when your grow houses are in the middle of California wildfires.
6) A Californian who ain't buying the MedMar excuse.
7) Urging Oregon to grow marijuana directly for MedMar sales.
8) Marijuana skirmish (actual shots fired) at the Mexican border.
9) Kid finds bag of marijuana at home and takes it to his teacher.
10) Ummmm . . . Sorry to break this to you, but MedMar is legal in Virginia.
§ 18.2-250.1. Possession of marijuana unlawful.Of course, I wouldn't hold your breath while you looked for a doctor who'd prescribe marijuana here.
A. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).
11) Denver trying to pass marijuana no arrest law.
12) Can a boss fire someone for something the State says is legal, but the Feds say is illegal?
13) The Rutherford Institute fighting for pot as a religious right.
14) The only reason to do this is that you want to go to jail.
15) Robbery of a grow house.
11/06/2007
India: Bad Cheque Requirements
Yeah, I admit it, half the reason that I posted this one is so that I could spell check the strange way they do where English is spoken instead of 'Merican.
11/06/2007
100 Pellets of Cocaine Swallowed
11/03/2007
Snakes On A Bus
You'd think the inspectors would have pulled them out as soon as they were spotted. At the very least you'd think the local police would arrest the guy as soon as he picked up the snakes at the post office.
Important safety tip if you ever plan on riding a bus in Indiana.
11/03/2007
Shackled & On the Run
11/03/2007
Run From the Police . . .
11/03/2007
OJ: What Did the FBI Know and When Did it Know It?
11/02/2007
Local Judge Removed
Ambush in Bartlette
Chapters 1 - 13
Chapters 1 - 13
Law & Theory
- LAWS
- Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
- Aggravated Malicious Wounding
- The Moped Exception
- Rape by Lie: 1 ~ 2 ~ 3
- No Intent Needed
- Arresting in a House
- Common Law Trespass
- Certificate of Analysis Introduction
- Probable Cause: Car Passengers
- Obstruction of Justice Limited
- Stealing Electronic Items
- Stolen Value: Price Tags
- Stolen Value: No Price Tags
- Stolen Value: Electronic Items
- No Weekend Jail on Felonies
- Obstruction of Justice Limited
- No Trifurcation
- No More Beer at the Barbeque
- Respondeat Superior
- DUI & Reckless Driving
- Can You Steal From the Dead?
- Outlawry Outlawed
- Felony 2d Degree Murder
- Banishment
- Computer Fraud
- Insta-Deputy
- PROCEDURE
- Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
- Invoking Right to Attorney in Virginia
- Who Prosecutes Misdemeanors?
- Expungement
- Surrebuttal
- Virginia's Reasonable Doubt
- Reasonable Doubt II
- Instruction: Right to Arm
- Virginia Castle Doctrine1 ~ 2 ~ 3 ~
- Dismissed with Prejudice
- SENTENCING
- I. Limitations on Right of Judge to Alter a Sentence
- II. Limitations on Right of Judge to Alter a Sentence
- III. Limitations on Right of Judge to Alter a Sentence
- Probation & Suspended Time
- Advisement in Virginia
- Jury v. Judge (sentencing roles)
- Limits on Evidence Presentable to a Jury
- Jury Sentencing Possibilities
- &CETERA
- Witnesses & Writ of Actual Innocence
- Domestic Battery & Firearm Possession
- Domestic Battery & Testimony I
- Domestic Battery & Testimony II
- Domestic Battery & Testimony III
- Domestic Battery & Testimony IV
- Shall Doesn't Mean Shall
- Just Following Orders
- Lycurgus Not Welcome in Virginia
Practice Tips
Specific Cases
- Jones:Trespass = Search
- Shatzer:4th Amendment Expiration Date
- Gant: Limiting Car Searches
- Montejo: No more 6th Amendment Protections
- Padilla & the Prosecutor
- Ventris: Allowing Unconstitutional Questioning
- Carroll Doctrine
Legal Theory
- Best Way to Choose a Judge
- What's a Prosecutor?
- Defense Attorney Purpose
- Plea Agreement Actualities
- The Big 4: Why I can't Go To Jail: 1 ~ 2
- Liquor Use Laws
- How to Fix Va.'s Court of Appeals
- Punishment Scale
- Punishment Scale Explained
- Punishment: There but for the Grace of God
- Heavy Sentences (1)
- Heavy Sentences (2)
- Probation
- Change Felonies to Misdemeanors
- Do Justice?
- Kentucky v. Virginia
- Must Prosecutors Disprove Affirmative Defenses?
- Drug Schedules & Punishment
- Defendants & Situational Sincerity
- 1) Immorality in Pleading Not Guilty
- 2) Immorality of Pleading Not Guilty
- Posner v. Hart & Strict Liability
- More Posner & Strict Liability
- Pre-Stare Decisis
- Let Juries Find People Innocent
- Tell Jury Elements Pretrial
- Falsity of Malum Prohibitum (1)
- Falsity of Malum Prohibitum (2)
- Falsity of Malum Prohibitum (3)
- Brady
- Writ of Spite & Hatred
- Various Riot Acts
- Tazers
- Finding of Innocent
- No Appellate Oral Arguments
- CrimJustice Purpose
- Pro Se Defendants
- Misdirecting the Police
- Stress Seekers?
- Plea Agreement
- Faking Probable Cause I
- Faking Probable Cause II
- Faking Probable Cause III
- Faking Probable Cause IV
- Legalese: Name Changes
- How Could We Best Select a Judge
- RICO & Bin Laden
- Requirement of Defense Attorneys
- Should Lawyers Make Clients Confess?
- Crummy Hired Defense Attorneys
- Noble Defense?
Back When I was a Defense Attorney
FEB03
Jury
Jury
JUN03
A Week in the Life
A Week in the Life
JUL03
A Week in the Life
OCT03
A Week in the Life
DEC03
A Week in the Life
JAN04
5 Events
A Needed Sign
A Week in the Life
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A Week in the Life
A Week in the Life
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FEB04
Supress Motion
A Week in the Life
A Week in the Life
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A Week in the Life
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APR04
A Week in the Life
A Week in the Life
A Week in the Life
A Week in the Life
MAY04
A Week in the Life
A Week in the Life
A Week in the Life
JUN04
Chocolate Chip Marijuana
A Week in the Life
High School Critique
JUL04
A Week in the Life
Cripple v. Cop
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
I'm a Narc
AUG04
Frustrating Day
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A Week in the Life
SEP04
Angry Relative
01 Long Week
OCT04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
-----
01 Long Week
02 Long Week
03 Long Week
NOV04
Client Families
DEC04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
06 Long Week
Surprise at Prelim
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JAN05
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Trial of the Century
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A Moment in Court
JUL05
Huh?
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A Prosecutor Tries to do Right
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What Just Happened?
Va. Worse than Conn.
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Heard in a Courthouse
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Heard in Court
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I Must be too Good
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Announce Becoming Prosecutor
The Last Life in a Week
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Friday
Client Communication
~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~
CYA Letter: Felony Client
CYA Letter: Appeal
-----
Dear Mr. Jailhouse LawyerConversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents
Time as a Prosecutor
JAN07
The New Office
FEB07
Different Court Diferent Behavior
Competency
MAR07
Cats
Ma'am I'm the Prosecutor
JUN07
I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
OCT07
Jury
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CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange
Criminal Law
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day by day
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In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.
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