28 May 2010

Methinks the Judge is a Hunter

Ripped from the Headlines (or at least the Volokh Conspiracy): A judge in Texas didn't exactly see the immediate emergency in a hunting cabin without toilet facilities.

How do you prove consent?

I was checking the searches which brought people to CrimLaw over the last day and came across "what are the best ways to prove consent?" The best way to prove consent is by video taping the transaction as your lawyers, in your presence, put together a contract which is signed by both you and the other party. Here's the best video I know of demonstrating that principal in action: "Sexual Consent"

27 May 2010

Quote of the Week

DefenseAttorney looks around my office at the Saint Ives plaque (patron saint of lawyers), certificate for working security on a JPII visit and statue of Michael defeating Satan. Then he turns to me and says, "You're Catholic. That explains why you're so tough about the law."

At the time my reply was, "Well, it's worked for over 2,000 years."

After DefenseAttorney left, I started thinking. If I'm tough because I'm Catholic, just imagine what what I'd be like if I was a Jewish prosecutor. With 2,000 years of a faith behind my religion I'm tough; with 4,000+ years behind me I might be a force of nature.

24 May 2010

Virginia Fixes a Flaw in the Appellate Process

So, I'm reading through the Virginia Appellate blawgs and I find out that the Virginia Supreme Court has changed the Rules as they apply to appeals. Now, I haven't had a thriving appellate practice as a deputy commonwealth attorney, but I still have some memories of writing these things back in the day. So, I wanted to check to see if they fixed what I remember being broke.

You see, there's a technicality in Virginia law which serves no purpose but to trip up the unwary and allow petitions for appeal to be dismissed without any consideration of substantive matters. In the Court of Appeals the petitioner is required to list "Questions Presented" (5A:12). However, in the Virginia Supreme Court the petitioner is required to list "Assignments of Error" (5:17). In fact, the Supreme Court's rule goes even further and states that "[o]nly errors assigned in the petition for appeal will be noticed by this Court."

It was a distinction without a difference and basically required that the questions presented to the court of appeals had to be changed into a statement. For instance:

Was the trial judge wrong when he ruled the sky was gray?

would become

The trial judge was wrong when he ruled the sky was gray.

It may have had the distinction of being the dumbest thing in the entirety of the appellate process. However, anyone who forgot to make this superficial change got his appeal rejected out of hand. It was a particularly nasty trick on those who were new to appellate work. After all, one would not expect appellate rules to have superficially different formats which could lead to the dismissal of an appeal out of hand. Newer attorneys who had an appeal rejected by the court of appeals would change the heading and put any arguments in they had to address points made by the court of appeals and send it off only to have it rejected because they hadn't made this unimportant change.


The Supreme court has rewritten rules 5:17 and 5A:12. Both rules are more extensive than they were before, but the biggest change is that now the court of appeals now has the same requirement as the supreme court. Both use "Assignments of Error."

Now, these rules don't come into force until 01 July, but thank goodness they fixed that flaw.

18 May 2010

Are there automated DMV's somewhere in Virginia?

Well, not the ones I've been to, but apparently some judges on the court of appeals think they are.

In Swanson v. Commonwealth, MAY10, VaApp No. 0163-09-3, a decision addressing the "opened the door" rule of evidence and the "present mental state" exception to hearsay, the court is addressing Defense Counsel's attempt to get some statements in after Prosecutor had elicited a statement from Witness that Defendant had said he went and got a title at DMV.
"Contrary to [Defense Attorney's] assertion, however, [Witness] did not testify that appellant indicated he had spoken to anyone at DMV. Instead, Farmer simply testified that appellant said he 'went to the DMV' – without giving any indication that appellant talked to anyone there."
OMG! Somebody at the appellate court has figured out how to go to the DMV without having to speak with anyone there! How?!? I demand to know how to go to the DMV and not have to talk to at least three people before you can get anything done. Quit holding out on us judge; there's a lot of us who would pay good money to know your secret. Or maybe they have a special automated DMV just for judges . . .

16 May 2010

Quantum Mechanics for the Defense





Comes now the Defense and moves this honorable Court to dismiss these shoplifting charges on the following grounds:

It is well accepted that our universe is subject to the laws of physics.

A principal of quantum physics is that observables are indeterminate until they are observed. See e.g. Schrodigger's Cat.

Mr. Smith entered the WonderMart on 13 June, 2012.

Per quantum physics, whether Mr. Smith would commit the crime of shoplifting a portable computer was an indeterminate matter. It was possible that he would and possible that he would not.

The uncertainty was resolved when Officer Jones observed Mr. Smith pick up the Acer netbook and run out the door of WonderMart with it.

Therefore, it was Officer Jones' observation which caused the actual reality of the theft.

An agent of the government, a police officer, is the direct and sole cause of the theft, because his observations caused various indeterminate possibilities to congeal into a set reality wherein a theft occurred.

WHEREFORE, as observation by an officer of the government is the sole cause of the reality of the theft, the Defense moves for an immediate dismissal.

FURTHERMORE, Mr. Smith moves for a writ of prohibition forbidding police officers, bank agents, store employees, family members, and all others from taking any actions which would cause future potentialities to develop into actual crimes. These actions include, but are not limited to, surveillance, video taping, inventorying items, asking Mr. Smith if he stole an item, and any other action which would cause an observation that something illegal had occurred. Clearly, these acts would all coalesce indeterminate possibilities into a reality at Mr. Smith's expense and therefore must be prohibited.

I ask for this:

Robert Greene, Esq.
Wolfram & Hart, LLC

10 May 2010

Renico v. Lett

Standards for reviewing a State trial court's decision to declare a mistrial (green = trail court / blue = state appellate courts / red = federal appellate not to mess with / black = federal appellate will overturn). Renico

05 May 2010

Quote of the Week

Defense Attorney has just spent the 5 minutes explaining to the judge why my interpretation of a statute is wrong and 15 minutes explaining to the judge why his interpretation of the statute is right. Then he points at me in, raises his voice, and voice quavering states in high dudgeon:

"And, judge, I don't think a representative of the executive branch has any business telling a representative of the judicial branch how to interpret something written by the legislative branch!"

03 May 2010

Virginia's New Laws

Okay, the Virginia General Assembly has had its two sessions and passed a bunch of laws which have been signed by the Governor. I went through and tried to get all the laws which are criminal law in nature and you can go read them all at Virginia Criminal Law & Cases (clickthru is in the right column). Here are some of the more interesting.

---------- [ NONE OF THESE ARE IN EFFECT UNTIL 01 JULY 2010 ] ---------

19.2-130.1 is being changed so that if a judge issues a capias and orders the defendant held without bond the magistrate cannot give that defendant a bond when he is arrested.

18.2-472.1(G)(2) is being changed so that the certificate of analysis only has to "provided with" the notice of right to demand the analyst's presence instead "attached to" it.
Yes, someone must have actually stood in court and argued, "Why yes, Judge, the Commonwealth gave me timely notice and gave me both pieces of paper. However, they didn't staple the papers together and therefore they can't introduce the analysis."

19.2-386.16(B) is being changed so that if you abduct someone or pander a juvenile prostitute you lose your car.
Cuz that'll keep'em from doing that.

9.1-903(J): If a sex offender doesn't have a legal residence he has to register the location of his cardboard box.

54.1-3420.1: Pharmacists have to keep track of who is getting schedule II drugs and keep it for a year.

18.2-308: You can now take your concealed weapon into the bar with you, but if you drink alcohol it is a class 2 misdemeanor. HOWEVER, federal, state, and local law enforcement officers are not subject to this law (because officers are all immune to alcohol).

18.2-308: It is not illegal to have a concealed firearm in a car if it is locked in a compartment or a container.
Think goodness. No more weapon concealed in the locked glove compartment charges.

46.2-857: It is reckless driving for two motorcycles to ride side by side in one lane, UNLESS the drivers are two officers on duty.

46.2-857: It is okay for cars in separate lanes to be side by side when one is passing the other.
You've got to be kidding me. It's currently illegal to drive side by side while passing right now (law in effect 01 July 10)? What court is buying that argument?

46.2-301.1: If you know someone has no license and that he has previously been convicted of driving without a license and you allow him to drive your car, you have committed a class 1 misdemeanor.

19.2-73(B): An officer with probable cause that a driver has driven under the influence within three hours can legally arrest the driver even if he did not see the driving (the law used to require the arresting officer to have seen it).

46.2-341.18(E): If someone with a commercial driver's license commits manslaughter in a commercial vehicle he cannot have a commercial license for 5 years.
Really? Do we want someone who has committed manslaughter in a commercial vehicle to be back out there in another one?

4.1-309.1: It is no longer legal to drive a school bus filled with kids while possessing or drinking alcohol.
Sadly, this has to be in reaction to specific facts which occurred somewhere.

29.1-521.1: If you bait an area to keep hunters from being able to hunt there legally, it is a class 3 misdemeanor.
Hmmm . . . If you are interfering with hunters around these parts your worries probably shouldn't center around whether or not you are going to get a class 3 misdemeanor.