30 June 2011

Virginia Court of Appeals Invalidates 221 Years of Common Law

In its neverending quest to take the power of judges to reduce a conviction to a lesser offense or dismiss it (when the trial judge deems that circumstances are appropriate), the Virginia Court of Appeals has this week invalidated every single alteration to the common law of Virginia that appellate courts have done, in the entire history of recorded decisions (since 1790). Judges are now entirely limited to (1) what the Virginia constitution specifies they can do, (2) what the English common law, as frozen in time in 1607 and writ in stone in the Tome of the Almighty and All-Encompassing Blackstone, allowed, and (3) what statutes allow.

In one fell swoop, the Virginia Court of Appeals has changed Virginia from a Common Law State to Civil Code State. It's a tripartite civil code with one corner in the Virginia constitution, one corner in Blackstone, and one in the Virginia Code. Be advised, trial judges, that anything outside of that is not allowed per Taylor v. Commonwealth.

This, of course, is ridiculous. The Appellate Court's assertion that the common law in its entirety came to a screeching halt in 1607, is just plain unsupportable. Anyone with even a modicum of legal history under their belt knows the common law was long seen as a developing thing. If the Virginia Court of Appeals decision is taken seriously, every post 1607 court developed rule dealing with evidence is out the window (remember Virginia's evidentiary rules are in large majority common law). All those hearsay rules and exceptions better be found somewhere in Blackstone, because they aren't all in the statutes and they definitely aren't in the constitution. And I'm sure there a litany of other evidentiary practices and legal doctrines which have developed since 1607 which are not written into a statute.

UNDERSTAND, for goodness sake UNDERSTAND, that the common law and constitutional interpretation are different things. Yes, I agree that constitutions freeze in place when they are written. Interpret them per the language and history of that time. A constitution is meant to set outer limits and in order to understand them you must interpret that document the way it was originally meant to be interpreted. ON THE OTHER HAND, it shows an appalling lack of understanding to close off developed and developing common law because it did not exist in 1607. The common law is meant to adapt and then be snipped back by the legislature if it goes too far.

The Virginia General Assembly has declined to adopt a Model Penal Code; it has declined to adopt comprehensive Evidentiary Rules; it has NEVER spoken as a whole on the subject of a judge's ability to show mercy through reduction or dismissal of charges except in that it has specified how these things can be done in regards to certain offenses. In fact, the last is a tacit recognition that this practice is ongoing and a shaping of it rather than a rejection of it. The General Assembly is acting in a manner which encourages the common law.

By stepping into the gap which has been left by the lack of legislation addressing this, the Virginia Court of Appeals has set itself up a legislature. This is not appropriate and the opinion should be overruled and no further action taken by the courts until such time as the General Assembly speaks on this subject. Judicial fiat should not replace the legislative process' ability to deal with developed common law procedures.  The Virginia Supreme Court has twice rejected the Court of Appeals' overreaching in this area; I'm sure it will at least address this issue. So now we wait.

In the meantime, we get to challenge everything a judge can't justify with a direct citation to Blackstone, a statute, or the constitution.  Commence au festival!

Law Students, Law Students, and Not a Job in Sight

Number of neophyte lawyers who passed the Virginia Bar exam:


Number of legal job openings:


You do the math.

At least Virginia isn't in as bad shape as New York.

CrimLaw News Around the World & Around the Corner

1) A woman in Kenya is arrested for having an abortion.

2) In possibly the most ineffective issuance of arrest warrants ever, the UN tribunal sitting to determine who killed the Lebanese Prime Minister - and nobody thinks that Hezbullah will ever let them be brought to trial.

3) The former President of Taiwan is indicted for embezzling 7+ million while in office.

4) The trial of the two Egyptian police officers who killed a kid and started the rebellion has been put off and might end up with more serious charges.

5) I don't know anything about Japanese criminal procedure, but apparently they appoint jurors rather than having a jury selection process like the U.S. Also, the comments on this murder charge are interesting and seem to indicate that rape & murder in Japan carries about a 2 year punishment.

6) This guy got 2 years for torturing a dog to death during a burglary. The prosecutor asked for 5 years. He deserves every second of the time.

7) If someone steals your purse hit his car with your cane so the police can track him down later.

8) Don't plug your cell phone into someone else's socket in Maine.

9) It's time for new judges in Virginia. Congratulations to each and every one of you. I'm sure you'll all be magnanimous, brilliant jurists, smart enough to agree with my analyses and realize that the argument the other guy is making is just so bogus.

29 June 2011

More on JDB

A couple weeks back I was bemoaning the fact that the Federal Supreme Court has left us without a standard for objectively determining whether a minor is in custody for Miranda purposes. While I was offering possible answers, Scott over at Simple Justice put his finger on the problem: it's based on "common sense." There's not a much more mushy standard than that. Personally, I got a few comments and emails which boiled down to "What's the big deal?" So I thought I'd spend some time spinning out the possibilities which now exist because of JDB.

It seems to me that we start with the standard reasonable person class; to begin with every person is assumed to be in this class. This is what we have from Whren and its progeny. Prior to JDB this class included all individuals. What the court has done in JDB is created at least one exception by class: minors. We perceive that minors have a different mindset than their elders and therefore, we are going to set a different standard for them. What standard will probably be played out over the next several years since the Court punted on that, but we know there is a lower standard of accountabilty.

The interesting part of this is how it effects the Whren standard. It could mean that Whren no longer applies to minors as a class and that the subjective state of mind of a minor is to be taken into account in every single case. That is the nightmare scenario which leads to arguments in every case in which the defense attorney tries to convince the trial court that his 17 year old client is as immature as a 4 year old while the prosecution tries to show that the kid is as more mature than the judge. Meanwhile, Judge Smith will find that everyone old enough to walk is mature enough to understand her right to walk away from questioning while Judge Jones will find everyone 1 tick of the clock short of 18 years of age is so immature that parents must always be present during questioning and Miranda must always be read. This, of course, would be a huge departure from the Whren and I suspect what will eventually wind up with is at least two classes of minors in which those under a certain age (say 16) which are suspected of a crime cannot be questioned without parents present and those 16 or 17 are treated as adults.

As some commenters on the last JDB post realize, another reason I find JDB interesting is that the logic behind it doesn't hold only for minors. Logically, if one class can be excepted from the reasonable person standard others can as well. All it takes to carve another exception from the Whren class is that society perceive that a class of individuals has a different mindset than the rest of humanity. That's not a high hurdle. An obvious class would be individuals with mental deficits. Another which might be carved out are women suffering from battered woman syndrome who are questioned by male officers. Then we can get to ethnic, racial, and religious perceptions. We could also overturn some longstanding law. Those in the class of intoxicated individuals have long been held to account based upon statements they made to officers while they were intoxicated. Now we have an obvious class of individuals who would have a difficult time being cognizant of their ability to walkaway from questioning. Of course, each of these potential classes carries its own constellation of issues in determining "objectively" that a person belongs to a particular class and whether "common sense" perceptions are realities or merely prejudicial perceptions imposed upon the class. In any event, logic dictates that the existence of one class exception means that others also exist and the reality is that we all belong to some class so this newly recognized set of "exceptions" could easily swallow the whole.

However, I have great confidence in the ability of courts to not follow logical reasoning. Trial courts will almost undoubtedly limit the interpretation of JDB to minors exclusively. Appellate courts will follow suit. That doesn't mean that sharp defense attorneys who are pushing the boundaries aren't going to use this opinion as the basis for all sorts of creative arguments.

28 June 2011

Tweeting the Traffic Stop

There's been a little bit of commotion over the last day about Darnell Dockett, a football player from Arizona, tweeting a traffic stop in which the officers tried to get him to let them search his car. You can look at the entire conversation here, but I did want to put up the part which made me chuckle
Police said "do you mind if we look around in your Vehicle?" I said I sure DO! He said "I'm gonna call back up" I said u wanna use my phone?

27 June 2011

Opposite Sides of the Illegal Pill Trade

A local jurisdiction did a drug round up and a local internet site listed all the arrestees. These comments following the list illustrate the "fix the problem but don't punish my family member" outcry we often hear and the "they are destroying the community, get rid of them" we hear even more often.

My dad is one of these guys. I'm 15 and I don't understand why they do these things. I do know that I have a GREAT father. He just needs some help. I love him and miss very much. I know that jail isn't the right place for him. He needs to be in rehab or something. He has 3 daughters and would do ANYTHING for them that he possibly could. If anyone has anything about these people, walk a mile in their shoes before you judge them.
Okay, So I'm just like a daughter to one of these guys listed above, I'm 16, and his daughter is just like my sister. I'll NEVER understand why he's on drugs, He has 3 girls, and me to raise, He's a GREAT guy, and I know this isn't the place for him, He doesn't deserve to be put in jail. They are addicts, and most of the reason they are addicted is because all the stupid doctors around here, give them the pills to get addicted to.
Punish Them
You got to understand they are DISABLED so that gives them a excuse to sell pills because they can't do anything else but they can work so hard stealing copper, fishing, hunting, going to all the parties, getting drunk, and four wheeling, but now remember I cant work. So let me go to the pharmacy and get my pills for a dollar because I'm DISABLED while everyone else that works hard everyday and all the coal miners that have worked 30 plus years underground and are still going everyday have to pay full price such as 50 and 60 dollars but me i get them for the wonderful price of one dollar so I can turn around an sell them and then when the Law Enforcement works so hard to catch me I'm going to get slapped on the hand and told not to do it anymore and I'll promise I'm straight and I won't ever do anything like that again but as soon as I get out the doctor is going to write me another prescription and whoooo hoooo time to make more money and people can get on the internet and say he just made a mistake.

What a joke. I hope they all rot in jail. Jail is were they should stay. wake up people your county is going to H3LL !!!!!

17 June 2011

J.D.B. v. N.C.: The Supreme Court on Questioning a Juvenile
Or How to NOT Set a Standard

Yesterday the Federal Supreme Court decided in J.D.B. v. North Carolina that in deciding whether someone is in custody (and thus must be told his Miranda rights) the courts must consider the age of the individual. Up to this point, there was a rather strong argument that under appellate precedent the objective factors which were to be considered in determining whether a suspect was in custody were all external to the suspect. Was he in a locked room? Was the officer sitting between the suspect and the door? Was the suspect in cuffs? &cetera. Now, the court has made it clear that those characteristics of a suspect which are known, or should be known, to an officer must be taken into consideration as objectives factors. For the moment this has only been applied to age, and I shall only discuss the age issue today, but it leaves open all sorts of interesting possibilities for future arguments based on race, gender, religion, etc.

J.D.B. was 13 years old. While in school, he was pulled out of class and put in a room with an officer and a vice principal. Without being read Miranda or being put in contact with his parents, he was questioned and confessed to a crime.

The entire argument of the case on appeal was whether his age had to be considered in determining whether he was in custody. And that's the only question the court answered. It's answer? Yes. There's more verbiage to it, but no actual standard appears anywhere. How is age to be considered? No answer is given. The Federal Supreme Court dumps it all back on the North Carolina Supreme Court to decide if J.D.B. was in custody when questioned.

Most of the opinion is spent rebutting governmental claims that age is a proxy for state of an individual's subjective mindset. The problem here is that it is not entirely convincing. What we are substituting for a the subjective mindset of an individual is the perceived subjective mindset of a class. All individuals are presumed both to know that they have the right to walk away from questioning and to have the capability of doing so. However, we perceive that minors, as a class, may not understand they have the right to leave or have the ability to walk away from authority figures.

So, since the Supreme Court has declined to actually give us a standard, how is minority going to be considered in determining whether someone is in custody? Well, the simple answer would just be to lay down a blanket rule that if officers question anyone under 18 without parental presence the questioning is custodial. Yet, that seems just as contrary to common sense as not taking age into consideration at all. After all, we all know that 17 and 18 year olds aren't different (other than an arbitrarily drawn line). If an 18 year and 1 day old understands the difference between custody and freedom to leave, a 17 year and 364 day old should understand as well.

Another possible test would be to go to the age rules which have developed over many years in the U.S. Basically, these age rules declare that (1) a child under 7 years of age CANNOT commit a crime, (2) a child 7 to 14 is rebuttably presumed not to be able to commit a crime, and (3) a child 15 to 17 can commit a crime. The first and third rule can be easily ported into the new precedent. Under 7 a child is always in custody when questioned by an officer; 15 and older the minor is treated as an adult. The problem here is the second rule. If we rebuttably presume that a child suspect age 7 to 14 is in custody when questioned we leave open circumstances in which the child suspect is not in custody because he understands as well as a normal person in the same circumstances. If we start arguing over the maturity of a particular 14 year old (he runs the local gang, handles $10k a week in drug business, and has a 17 year old girlfriend) then we start having objective / subjective problems. We have decided he is objectively in a class presumed to have a mindset not capable of understanding and handling the questioning situation. Are the circumstances which indicate that he is mature objective ones considerable by the officer or are they merely indications of a individually subjective mindset which cannot be considered?

Perhaps the standard is that Miranda must be read to each and every minor, whether the minor is objectively in custody or not. But, that doesn't really solve the age problem. At what age do we deem minors able to even understand Miranda warnings? At what age do we deem them capable of acting even if they understand?

This has, just in the portion that will deal with minors, potential to ripple out for at least 3 to 5 years. If you throw in all sorts of other classes - abused women, lawyers, the handicapped, etc. - this has the potential to ripple out into decades of constitutional decisions.

16 June 2011

Alamo Drafthouse

Never been to Austin in my life, but I've heard numerous critics rave about the Alamo Drafthouse and how serious they take the viewing experience. They also apparently have a sense of humor. This is the trailer they show before the movie to let people know that using phones is absolutely not allowed (very, VERY NSFW).

13 June 2011

What People Think of Us

I was bouncing around a few internet bulletin boards reading the local gossip (a guilty pleasure) and I ran across these wonderful words describing how people perceive attorneys:

Post One -
"Lawyers are no good. They are why the Nation is in the shape that it is in. I have watched how they treat people in court. They defend the worthless and it doesnt matter who the victim is they will go down fighting for people who have raped sold drugs and have killed. Theres no honor in how they treat the victims of crimes. The good olboy system, all the Attorney's get in the back room and make deals. It is actually pretty crappy. I have heard some say if that individual stole my stuff they need to be hung. I guess its ok they steal the average Joe's stuff. Dump A-- should not have left it out. Lawyers are worthless."

Post Two -
"Don't think they [attorneys] are on drugs but they are responible for alot of crimes going unreported because people know how they will be treated in the courts by the Attorney's and Judges who are Attorney's. A convicted felons word will be take over a law abiding citizen or police officer. I got a speeding ticket and had to be in court and the Judge talked to this guy like he was a dog because he was upset that the case was being put off again and he was trying to explain that he had a family to support and needed to work and that he had already missed three days work to testify in a case where his house had been broken into. This is how the system treats the people for being honest and law abiding. Its all ok the Judge got paid over $100,000.00 a year and the Attorney will get paid by the tax payer merry christmas."

Good to feel so loved . . .

11 June 2011

Scalia on Congress' Ability to Write Precise Criminal Statutes

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.


From: Sykes v. US

10 June 2011

Strauss-Khan, Phones, & Computers

A question came up in my comments when I checked them this morning:
I am very intrigued about a question related to the NY Strauss-Khan case. Police confiscated the man's phones and computer when he was arrested. His lawyer says messages left on these gadgets may contain sensitive information related to his defense, so he asks that prosecutors be barred from knowing what the messages say. What are the rules? Can the police go through his messages and then decide who has access? Who decides if prosecutors get access to the messages? What if the messages contain an indication of his guilt?
First, I'm sure his defense attorney is right. There is almost undoubtedly info on those phones and computers which the prosecution would love to have and the defense wants to keep from them.

Second, the thing which most likely determines the answer to this is how the police came into possession. If the phones came into possession as part of the search subsequent to arrest or were taken as the defendant checked into jail, then the police probably would have to get a search warrant to actually access the information in them. However, I suspect this is not how the police came into possession of the phones and computers (computers don't often fit in pockets). Most likely the police got the computers and phones as part of a search warrant. It would be a very shoddily written warrant which would call for the seizure of computers and phones, but not call for the search of the information in them. So, a police search of the data would be allowed. In fact, I can't think of any reason that computers would be seized except to search them.

However, there might be a restriction upon the officers' ability to look at the computer content. If the defendant was using the phone or computer to send and receive messages with his attorney there could be privileged information located on them. In such a case, the defendant could ask that the information not be usable by the prosecution; he could also ask the court to stop agents from the prosecution from looking at the information. The remedy here would be to have the judge look over everything in camera (by himself, in his office). As a practical matter, this may not be feasible. The judge is not a forensic computer expert. He may have to try and set a firewall between the prosecutors and their expert so that everything they find on the computer and want to hand over to the prosecution has to be given first to the judge and then, only after he approved it, forwarded to the prosecution.

08 June 2011

CrimLaw News Wednesday

1) If you mandate that the laws get lenient, police may arrest people before the law changes.

2) Japan has discovered a shocking thing: there's more crime in cities than in rural areas and criminals take advantage of situations.

3) Y'know, having spent 6 months there once, I can say that I don't think Sharm El-Sheik would be a bad place to wait for trial.

4) Peeping up skirts via a see-through stairway in an Ohio courthouse.

5) The Global Commission on Drug Policy says to legalize it all. Because that's worked so well with oxycontin, hydrocodone, subutex, xanax . . .