31 October 2008

I make My Presidential Endorsement

As you can see to the right, I have made my endorsement for President in 2008. Despite his rumored association with a dead terrorist, I think this is the best man for the job.

Caption Contest



Let's see if we can get a few more responses than last week's goose egg.

BTW: Does this also qualify as the traditional Friday Cat Blogging?

29 October 2008

Stevens Convicted & Still Running for Senate

"I am obviously disappointed in the verdict but not surprised given the repeated instances of prosecutorial misconduct in this case. The prosecutors had to report themselves to the Justice Department's Office of Professional Responsibility during the trial for ethical violations. Exculpatory evidence was hidden from my lawyers. A witness was kept from us and then sent back to Alaska. The Government lawyers allowed evidence to be introduced that they knew was false. I will fight this unjust verdict with every ounce of energy I have."

Drugs, Lap Dances, & Hill Billy Heroin

1) Heart attack linked to cocaine.

2) Immigration official and marijuana smuggler.

3) Don't tip the lap dancer with cocaine.

4) Burning the house down while growing marijuana.

5) Cracking down on doctors who prescribe too much Hill Billy heroin.

Theft: Lynchings to Soldiers

1) There are some places you shouldn't be a thief.

2) If you nap during the break-in . . .

3) Even if it's not locked up, stealing a bike is stealing a bike.

4) You can't sell your weapons when you are a soldier.

5) Don't burglarize a police station, no matter how drunk you are.

Hate Crimes

1) Idiots and Obama.

2) 1st Amendment trumps when Palin involved.

28 October 2008

And so it begins . . .



Okay, I had to drive home thru a blizzard last night and come back to work this morning over a frozen snow covered mountain. IN OCTOBER!!!!!!!!

Where's my global warming? I was promised global warming!

27 October 2008

Drugs, Fake Feds, & HillBilly Heroin

1) If you are going to transport marijuana make sure your license plate is okay.

2) Fake feds steal real marijuana.

3) The joy of socialized medicine: government subsidized oxycodone.

Theft: Salt to Perfume

1) 120 tons of salt? And where, pray tell, do you fence that?

2) Don't sleep on the job - especially when you are in the middle of a theft.

3) And I thought only Santa had to worry about getting stuck in the chimney.

4) If you are going to steal copper wire while it is hot . . .

5) Aw, that's sweet. He stole the perfume for his girl.

Murder

1) A British student, a Japanese vampire comic and an Italian prosecutor.

2) In Japan you can get charged with killing someone virtually.

3) Life in an Italian jail for a woman charged with murder - apparently you get propositioned.

4) Website cartooning as an alibi.

Sex Crime Law

1) LAPD swamped with untested rape kits.

2) Why would a porn actor commit rape?

3) Won't be legal to paint nude kids in Australia much longer.

Pakistani Crime Wave

There have been a whole 910 crimes reported this year.

25 October 2008

Basketball's Coming



Pretty soon the warmup season will be over and the real sport will begin. Looks like a good year. My alma mater, Centre, is ranked 13th preseason DIII, which is interesting since that's the exact same rank that Centre has in Forbes' ranking of all the schools in the entire US.

Of course, Centre Football has been getting some luv also: Campus Squeeze's Top 14 Football Upsets:
2.) 1921: Centre College Over Harvard 6-0

Today, everyone knows Harvard as the college for smart kids. But back in the 20's they were the college for smart kids AND good football playing kids. And this upset is pretty insane. Centre College, located in Kentucky, was OVER-LOADED with students, 254 of them. And the football team had probably 40 players, meaning that roughly 1/5 of the students played for the football team. No one gave Centre a shot. It was similar to the United States going to war with you. Just you. Versus the United States. And you killed everyone. It took until the third quarter for a score. Centre put it in the endzone, but missed the extra point. It wouldn't matter. Harvard failed to sustain any sort of offense, which you've probably deduced already thanks to the goose-egg next to their name.
I can't even imagine what it would be like if our football team played a DI nowadays (you see, Centre's players actually still have to go to class and earn their grades).

24 October 2008

23 October 2008

Va. Court of Appeals

McEachern v. Commonwealth: If you take a car it can be inferred that you intend to steal it; a stolen item is taken with intent to not allow the victim to have it back (as opposed to unauthorized use, a lesser felony). Specifically, if you announce that you intend to force someone into their own car and take them somewhere to kill them and they run away, you have still taken the car without the intent to return it to its owner when you drive away with the car.

21 October 2008

Sometimes Even the Best Plans Fail

Steal a truck, steal a flatbed, steal a forklift - still fail at the crime.

Visitor From Abroad

Yesterday someone from the University of Szeged (Hungary) apparently stayed on my site for 366+ minutes and 147 page views.

Dang, even I don't spend that much time on my blawg.

Criminal Possession in the 7th Degree???

Okay, somebody from NY please explain to me criminal possession in the 7th degree.

Here's how I picture possession in the 7th degree: A person in Idaho thinks about someone in NY who knows someone who might know someone who has an LSD tab.

Am I close?

20 October 2008

Brady The Mess That Is

Brady is the name given to a series of cases which stand for a basic principle: if there is evidence that someone is innocent the person accused should be given access to that evidence. At its core it's a uniquely strong principle. Unlike many of the other things argued about in court, such as 4th Amendment search/suppression issues, Brady doesn't deal with an attempt to defend a principle by throwing out evidence which actually points to guilt. Instead, it is a positive requirement that particular evidence in a particular case be turned over to the defendant because it shows his innocence.

In actuality, when lawyers refer to "Brady" they are referring to two related requirements. The first, which finds its roots in Napue and Giglio, is the requirement that the prosecution turn over any evidence the government has which would impeach a prosecution witness. The second, coming out of Brady, is a requirement that a prosecutor turn over any evidence the government has which is exculpatory. The case law is clear that in either case the prosecution's requirement to disclose is not just limited to what he knows. If it is known by any government agent the prosecutor is required to disclose it, even if the prosecutor never knows of the evidence's existence. There are cases in the lower appellate courts which state that if exculpatory evidence is not turned over prior a guilty plea is not valid.

At the heart of Brady is an abiding belief that the government will play fast and loose, or downright cheat, to get its man. As unpalatable as that thought is, anyone who reads the decisions applying Brady can see that in some cases prosecutors have. In such cases the prosecution deserves to get dinged. There's even a valid reason for the refusal to allow the prosecution a “good faith” exception. After all, if someone was willing to deny a defendant evidence that he might be innocent it's not much of a step to claim no knowledge of the evidence at all or to engage in willful blindness. Thus, the rationale for the Brady rests on solid foundations.

Even when everyone is acting in good faith, there are problems when Brady bumps into reality. In reality, there are two major problems with Brady. The first is that the prosecutor and the defense attorney are going to have different views of what evidence is exculpatory. Any defense attorney worth her salt is going to see just about everything as exculpatory; she'll want to know if 3 decades prior the complaining witness' grandmother once uttered a slur about Colombians in front of the witness because that could effect his bias toward people of Colombian descent (the immigrant defendant's place of birth). On the other hand, prosecutors are going to take a rather narrow view of what constitutes exculpatory evidence; if nobody else has confessed to the crime and the DNA hasn't come back as belonging to someone else the prosecutor probably isn't going to see it as exculpatory. How can this be resolved? Well, there is always the option of having the judge review the evidence in camera (reading over it in private in his chambers) in order to see if he thinks there is evidence which the prosecution must turn over. Of course, this is not practical. No judge is going to sift thru the evidence in every single case. Thus, short of something unusual happening, Brady evidence will depend entirely on the prosecutor's interpretation of whether it is exculpatory or not.

The second problem is in almost every case the prosecution is constantly in technical violation of the Brady line of reasoning. If the lab which did the drug analysis fired a guy 5 years ago for sloppy work that's impeachment material. If a single witness has been interviewed more than once he will have said something which isn't exactly the same as he said the first time. Those variations could technically be used to impeach the witness. If there are two witnesses there is no way their stories will be exactly the same; the fact that the witnesses vary in describing the defendant as wearing blue or green shoes is technically exculpatory because it could bear on the identification.

Now imagine a serious, complicated case – you know, the kind wherein the prosecution has dedicated an entire file cabinet just to this case. 2 people were killed and initially the police didn't know who did it so there is a drawer full of forensic reports from two labs (ie: one analyzed things like carpet fiber and DNA – the other checked the deceased's computers). 20 police canvased a ten square block area and got three "confessions." One was from Crazy Joe, the town drunk who confesses to everything. The other were by two smartaleck college fraternity pledges who were required to walk up to an officer and confess as a fraternity prank. The patrol cops don't even bother to tell the investigating detective. A year later a guy in jail contacts the police and tells them that his cell mate has admitted to the murder. It is too late for him to get a sentence reduction; however, 2 years later, a month after the trial finally comes to its conclusion the inmate has a parole hearing (which the prosecutor didn't know about until he got a letter 3 days before it asking for "a good word." Et cetera. &cetera. Etc. There will definitely be dozens, probably hundreds, maybe even thousands, of things in this kind of case which will cause even a prosecutor who has an open file policy to fall short of Brady requirements.

The federal supreme court has tried to further clarify its position in a case called Kyles. This case held that a Brady violation was neither subject to a "harmless error" nor a "sufficiency of the evidence" review. Instead, it established the "verdict worthy of confidence" standard; the evidence not turned over must be "material to either guilt or punishment" and there must be a "reasonable probability" that all the cumulative undisclosed evidence would "undermine confidence in the outcome." While I don't think this is as low as probable cause, the court does portray it as a lower standard than a preponderance that the undisclosed evidence would have resulted in an acquittal. In the court's own words,
"The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.
. . .
The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."
The court goes on to lay the responsibility for determining when the cumulative evidence meets the level that its disclosure is required in the laps of the prosecution and makes it clear that it is no excuse if the prosecutor did not know of exculpatory evidence in the hands of someone in the government.

Brady remains an unsatisfactory situation for all parties involved. Like much of the justice system, it's an imperfection lacking a more perfect solution. Defense attorneys are not going to be satisfied with government disclosures. Prosecutors are left with an amazingly high sounding standard which provides little in the way of actual guidance. Appellate courts are in an even worse position. What puts a case in a "different light" in rural Pitcairn County could be quite a bit different from what does that in the City of Shire. Different jurors, different judges, different attitudes about violence or drugs or the police, &cetera, could all bring a different meaning to a "different light."

It's a great principle. It's just not pretty to watch in action.

17 October 2008

Friday Caption Contest

Name that pic - winner to be announced next Wednesday:



The only rules are the same ones as always - No Politics - Civility (no cursing or name calling) - No Politics

(with thanks to the long gone Commonwealth Conservative whose idea I am stealing - NOW WITH EXPLICIT APPROVAL BY CHAD DOTSON)

13 October 2008

The Crime Scene Cleanup Business

A movie about cleaning up murder scenes. Go figure:

Colombian Prison Beauty Pageant

They obviously have different ideas about the prison system in Colombia.

From the Virginia Court of Appeals

Singleton v. Commonwealth: An attorney who sends a letter to court saying he will not be able to come and tells his client not to come to court is in contempt, even if the Commonwealth Attorney has agreed to a continuance. Continuances must be granted by the trial court.

comment: This is in reaction to is the increasing use of what, at best, is an emergency procedure as a regular way to gain a continuance rather than asking for a continuance in person prior to or on the court date.

Bowden v. Commonwealth: Under Virginia law, aggravated sexual battery is not a lesser included offense of forcible sodomy. The only element they have in common is that both apply to a victim under 13 years of age.

12 October 2008

The Continuing Saga of "Raising the Bar"

Well, it's been three weeks since the last time I wrote about "Raising the Bar" so I thought I'd address the issue which has bothered me the most so far about the series: the defendants.

Episode 1:

The first defendant we saw was Calvin. Calvin is a stand-up guy who has been falsely accused of rape. While conflicted, he agrees to plead guilty, but the judge refuses the plea and forces him to go to trial.



The second defendant is George. He stabbed a guy 36 times and cut his penis off. He doesn't want to go to trial because he does not want himself or the victim to be called queers. Therefore, he agrees to be an informant.



Episode 2:

This is Terrence. He is a sympathetic black kid who was manipulated by girl as a tool against her cheating boyfriend. Eventually, he ends up being harassed until he beats up the girl's boyfriend.



This is Mr. Rodriguez. I don't have any video of him because he didn't really have much of a part in the episode. He was just the defendant and the story was mostly about the prosecutor trying to hide a witness.



Episode 3:

This is Will. He is a mentally disturbed, likable defendant who resists treatment for his condition.




This is Kia. She is a likable, headstrong, self righteous misdemeanor assaultor who violates a protective order and gets herself a felony in the process. She minimizes her guilt by downplaying her acts.




Episode 4:

I never caught this guy's name. He is a family man who was going broke and killed a thief who was trying to steal the tools he needed to support his family.



This is Sabrina. She is being pressured to testify that she saw a murder which she did not see. The police charge her with a misdemeanor and take her children in order to pressure her.



Episode 5:

This is Bruce. We don't see him too much. He raped a boy and is accused of having murdered him. In the couple of times we see him he talks about having nightmares and lokks guiltily at the parents of the boy.



This is Freddie. He is a family man who is taking his chance at spending 25 years in prison on a drug distribution charge because it's the only way he get out to see his wife and he can't inform on the person the police want him to because that man is caring for his family.



Episode 6:

This is Stan. He parleys, with the willing participation of his wife, a domestic battery case into a violation of a protection order and battery of a police officer.



This is Sheran (Sean?). He is a father accused of trying to rob someone and is concerned that he be able to get back to his family.




I tell ya'll, after watching 6 episodes of this show I think I took up the practice of criminal law in the wrong State. The defendants are all nice, supportive, grateful, cooperative and basically friendly. They don't seem to have any of the people I asked about in my first review of Raising the Bar.
Where are the jailhouse lawyers with strange ideas who won't believe the attorney? Where are the guys who refuse to listen to advice? The ones who demand jury trials despite overwhelming evidence? The defendants who try to con the defense attorney with a bad story (or even out of his own money)? The ones who accuse the defense attorney of being on the side of the judge and prosecutor? The mothers, girlfriends, and others who blame the defense because the defendant gets convicted of a robbery he was videotaped doing (if we'd had a paid lawyer . . . ) Where's the guy who is so obviously trying to do things before and during his trial to set the defense attorney up for a habeas or Bar complaint?
There are elements in many of the presented defendants which ring true (especially episode 3), but none of them are real trouble makers. Criminal law would be so much more pleasant if all the defendants were as nice as these folks. How come when I was a defense attorney a difficult client/family seemed to pop up at least once every 6 months? Was it just me? Are defendants in Virginia just naturally more cantankerous than defendants in New York?

David, how about a two episode story in which the defendant is a jailhouse lawyer who files a bar complaint as soon as the defense attorney is appointed (before the attorney even knows he's appointed)? The defense attorney has to fight that off (when the Bar requires a reply) and then go to trial representing this guy, who refuses to plead guilty because of irrelevant technicalities, is found guilty and handed a heavy sentence. Then, of course, the defendant files another unmerited Bar complaint which the attorney has to answer.

How about a Mom who pressures her on-bail son to go to trial despite the attorney's advice to continue the case and then catches the attorney in the hall (after her son gets 6 months in jail 2 weeks before Christmas), corners him, and reads him the riot act for ruining her youngest son's life? Her family's last chance at getting one son to adulthood without his life being ruined by going to jail.

Aaaaarrggg!!! I'm starting to get frustrated just remembering.

10 October 2008

How & Why People Get to CrimLaw

At random intervals over the last week or so, I've been checking to see what people are searching for to bring them to CrimLaw. On six occasions I printed out the twenty most recent searches. Tabulating the results, here are the top five:
1. Puerto Rico Flag (from a picture in an old post – Google images seems to have fixated on this picture)
2. Methadone
3. Malicious Wounding
4. The Bluegrass Conspiracy
5. Lammers
Other queries:

On two different occasions people came to the site looking for pictures of naked men (kinda creepy). Not sure what would make someone think my blawg would be a good place to search for that but one searcher was pretty specific "naked pictures of john smith NOT blacked out."

"can they revoke probation for not paying restitution in indiana"
Probably.

"courtroom fashion tips female"
Dress sexy. Who cares if the judge finds you in contempt? You'll be the highlight of the day for all the bored male attorneys.

"5 commonly use to drugs"
Ummm . . . basically there are just two: medicinal and abusive.

"things people steal from work"
Whatever isn't nailed down.

"0 DOLLAR BILL"
I'd be interested in seeing that myself.

"BASIC QUESTIONS A PROSECUTOR CAN ASK"
Anything I dang well please.

"all defense witnesses take the 5th"
Making my day so much easier.

"bench trial how long do they last"
Until they're over. Silly question.

09 October 2008

Crimes and Voting

Apparently in Ohio you can even vote in violation of the State's own constitution.

Probation for Attempted Abortion

By attempting to force a girl to drink turpentine.

Giving Prescription Drugs to Your Son Violates Parole

At least if you give it to him to share with his buddies.

Be careful when you steal someone's ID . . .

. . . you might run into your putative sister-in-law.

The Power of Prayer

. . . to scare off a robber.

If you are going to rob a police station . . .

. . . you should get more than a cell phone and a little money.

Some People Have Too Much Time on Their Hands

At least the lady who fought this ticket did.

No, not too fat . . .

. . . to be executed.

Bring $4,000 worth of drugs into a jail . . .

. . . you might be invited to stay.

07 October 2008

Thoughts on a Federal Criminal Charge

"The bottom line is, if you are charged with a federal crime, you are probably going to go to prison. If you have been charged with a federal crime your first thought should not be whether you are going to go to trial to prove your innocence. And if you are guilty you certainly should not risk going to trial. Your first thought should be how to keep your prison sentence to the absolute minimum. Leave the question of guilt or innocence to the academics. Make sure your sentence is short enough so you can pick up the pieces when you are released."

If a thief knows ebay exists . . .

. . . police probably will as well.

Make up your mind

Sending an email confessing to a murder would seem to indicate you want to come clean. On the other hand, fleeing to Iowa . . .

If they accidently let you out of prison early . . .

. . . you probably shouldn't go on a crime spree.

The Mistake that Keeps on Giving

It may not take long to get that tattoo on you neck, with your identification information, but it will be around every time you steal something in front of a camera.

Earning a One Way Ticket on the Down Elevator

Stealing a minister's car during the service.

Banker . . . Bank Robber

It appears someone has forgotten which side he was on.

It's bad enough when Moms drive kids to something as evil as soccer . . .

. . . but driving them to a gang murder is something else.

02 October 2008

Here is the New Award

By popular demand, here's the award for being a top five on LX: