CrimLaw

Blogging Criminally For Over Ten Years

5/27/2012

They Sacrifice, We Benefit.

Never Forget.

Ken Lammers . . . Permalink . . . 0 comments

5/23/2012

Centre: The College, The Study, The Legend

Yes, yes, I'm sure I've already told you that Centre is better than whatever school you went to. Founded in 1819, eldest college west of the Appalachian Mountains, academically stringent, academically stringent, academically stringent. How academically stringent? Well, the Washington Post just listed Centre as the school in the United States where freshman spend the most time studying. And, I must say, the number of hours that the Post states seems far, far, far lower than the number I remember doing and observing from other students.

I chose Centre because it used "real" grades (no grade inflation), no one had graduated with a 4.0 in decades, about 25% of the incoming class did not graduate (at that time), and the studies were rigorous. In other words, when I worked my rear off and graduated with majors in Religion and International Studies and had a gpa slightly north of 3.0, I knew I had earned those grades and that diploma. I didn't get a pass through because I scored high on my SAT or ACT, played sports, or had the right parents or connections. Too many "elite" schools are like that now. This was driven home to me when I went off to law school at another "elite" school, where students had high SAT's and came from the right people, and was talking to some undergrads and they bragged about the quarterback having a 4.33 gpa.

The implication in the article that the studying is because Centre is isolated is kind of weird. Centre's 30 minutes out of Lexington where there are plenty of restaurants, bars, places to shop, etc. As well, there are parties on campus every weekend. There was no lack of distractions if you really wanted them. That's not the reason people study at Centre - at least not while I was there. We studied because it was a hardwired tradition at Centre; getting a superior education was why you were there. It's so much a part of the culture that the fraternities seriously competed for the "Yerkes Cup", which has been awarded forever to the fraternity with the highest gpa. Furthermore, the classes were hard, the grades were real, and you could fail.

Look going to a lesser school doesn't necessarily mean you are inferior and I have been consistently impressed by graduates of two schools whom I have met: Morehouse & Harvard. I've just never met a graduate of Morehouse who didn't come across well and who did not seem to have received some of that from Morehouse. Mind you, the number I've met is less than 20; still, I would have expected to run into a couple bad apples by then from any school and I have not. As for Harvard, I've probably run into between 30-50 of them in my life (most of them in group settings without long personal conversations). All were extremely intelligent and talented, if tending toward condescending (not all though; went to law school with a good guy from there). The problem is, I never know if they really gained anything from the school other than connections and the school name. I think most would have been just as well educated in many other schools and been just as smart whether they went to Harvard or not. The primary thing I've learned about dealing with Harvard alums is how to deal with the false modesty displayed when they won't say what school they went to. When asked, they will say "I went to school in Boston." The implication is clear; after all, there is only one school of note in Boston. The appropriate answer is to look the person right in the eye and say, "So, how did you like Boston College?"

And, with that last little bit of meandering, I'm off to court.

Ken Lammers . . . Permalink . . . 0 comments

5/20/2012

Interesting Things You Find When reading the New Laws

So, I'm trying to work my way through the new laws which have been passed by our General Assembly and signed by the Governor. These are always interesting because you get to see what has caught the attention of the law makers and you learn about things you didn't even know were in the law. So far, there does not seem to be anything too incredibly groundbreaking this year.

Probably, the biggest change I've run across is the fact that Virginia is going to have Rules of Evidence promulgated by the Virginia Supreme Court as of 01 July 2012 (HB-101). The claim is that these are merely codifying existing common law rules, but I've glanced over them and there appear to be changes to long held Virginia common law rules.

There are, of course, other important changes in the law. For instance, the County Treasurer is now allowed to carry a firearm into the courthouse (HB-288) and dogs can now be trained to hunt bear from 4 a.m. to 10 p.m. during bear hound training season - as long as no bear is captured or killed (HB-95). Because that was a law which desperately needed passing.

When I finish all my summaries of all the new laws I'll be sure to post them.

Ken Lammers . . . Permalink . . . 0 comments

5/15/2012

Good Cop

For those of you who believed that YouTube exists only to show officers behaving badly, here are three proving it's not (entirely) so.

1. The Maine State Trooper: This one's been around the web for years. This Trooper endures all sorts of abuse from the driver and his reaction? He just slowly, but surely tells the man everything he's supposed to. Slowly.

2. Chat 'em Up: There's nothing too spectacular about this one. Two protesters were pretty much being ignored until this state police officer came out to check on someone wearing an orange jump suit. The protesters seem impressed.

3. Open Carry: In this case it's fairly obvious that the guy walking around openly carrying a firearm is hoping to provoke something. The officer comes up and starts a typical safety check (you have a right to open carry - conversely, other citizens have a right to be worried when they see a guy walking down the street armed), but he quickly cottons to what's going on and turns it. By the end of the video he turns right into the camera, makes sure he's centered, and announces his name, badge number, and department.

Ken Lammers . . . Permalink . . . 0 comments

5/15/2012

When You Are Going to Rob Someone Keep an Eye on the People Around You

Oops, ummm, Officer I was just, ummm . . .

Ken Lammers . . . Permalink . . . 0 comments

5/04/2012

United Breaks Guitars

What do you do when an airline breaks your expensive guitar and refuses, for over nine months, to make you whole? You do this:

Over 11 million hits and climbing.

via Volokh Conspiracy

Ken Lammers . . . Permalink . . . 0 comments

5/03/2012

The Dead Horse

Attorney: Judge, I don't want to beat a dead horse . . ."

Judge: "Well, somebody has to."

Attorney: "Okay, I guess there are just some horses that need to get beat, even post mortem."

Ken Lammers . . . Permalink . . . 0 comments

5/03/2012

Recreating the American Criminal Legal System:
Inquisitorial and Adversarial

Via SL&P, I came across a post by James Dole in which he proposes that prosecutors be split into two groups with different functions. Basically, he posits one group which negotiates plea agreements and one group which prosecutes those cases which go to trial. Personally, I think he is onto a good idea, but he needs to expand his vision. If we're going to go there we need to do it for the entire system, not just the prosecutors.

To begin with, we should just dump the whole idea that lower level courts are adversarial. Make the lowest level court an "Investigative Court" which has no jury and handles misdemeanors (maximum punishment 6 months), preliminary hearings, and plea bargains. Let's call the person who presides over this court a "Commissioner." Commissioners participate in the investigation and are the individuals who issue warrants, investigative subpoenas, and perform any other function a judicial officer might perform. However, their function is not to be a neutral arbiter; their job is to guide the search for truth.

Next, let's call the prosecutor in this court an "Inspector." Her job is to determine the appropriate charge(s) and what the government thinks the appropriate disposition of that should be. If the defendant refuses the offer on a misdemeanor the defendant, his counselor, and the accuser go forward in court without the Inspector participating. If the defendant refuses on a felony the Inspector would lead a preliminary hearing in front of the Commissioner. After the prelim, the Inspector can make another offer. However, if she chooses not to or the defendant refuses the new offer the case would proceed to the trial court. She also works closely with officers, advising them on legal and constitutional issues.

Finally, the attorney for the defendant would be a "Counselor." He would not represent the defendant; instead, his job would be to inform the defendant of his rights, explain the charges, and explain the plea offer which the Inspector has offered. In misdemeanor cases the Counselor would not argue the case, but he would stand beside his client and be able to interact with him in order to answer his questions and give advice as to how the defendant should proceed.

The "Trial Court" would be entirely adversarial. It would handle felonies in which the defendant refused the plea offer and de novo trials of misdemeanors if the defendant chooses not to accept the decision of the Investigative Court. Since a primary principle of the Investigative Court will be that nothing can be finalized there without the defendant's acquiescence, a conviction on a misdemeanor could be appealed to the Trial Court. However, in order to avoid abuse, the maximum punishment of a misdemeanor if appealed would become 12 months.

The Judge in the Trial Court would be neutral arbiter. No one who had served as a Commissioner would be eligible to serve as a Judge. Additionally, a Judge would be required to have served at least five years as a Advocate for the Defense and five years as an Advocate for the State before he would be qualified to take his seat. Judges would make rulings on the constitutionality of actions, both those solely performed by officers and those performed by the officers in conjunction with the Investigative Court (dispensing with the pure fiction of Leon that judges' behavior would not be affected if the warrants they sign off on are suppressed). The Judge would preside over jury trials, bench trials, and guilty pleas (you can't prevent a defendant from pleading guilty). If a jury trial is taken, the Judge will decide legal issues and give jury instructions which he created. Jury selection should be simplified, with peremptory strikes eliminated. As well, jurors should be limited to those who are employed, retired because of age, or own their own business. If the defendant is found guilty in a jury trial the jury will decide his sentence. If a defendant is found guilty via a bench trial or guilty plea the judge must sentence the defendant to the average sentence which juries have sentenced defendant across the State or up to set number of years more than the plea offer, whichever is greater. The set number should vary depending on the severity of punishment offered by the Inspector. If the offered plea offer was less than five years the Judge could add an extra year; if greater than 5 but less than 15 the Judge could add 3 years; if greater than 15 the Judge could add 10 years.

Attorneys in the Trial Court would be "Advocates." The Defense Advocate would argue constitutional issues, speak for his client at trial, and argue for his client during sentencing hearings. Basically, she'd do what any defense attorney does now except she would not negotiate for a plea agreement. The State Advocate would have the same, although reciprocal, role as the Defense Advocate except that he would be shorn of one additional duty. He would not advise law enforcement as that is the Inspector's job.

I think this would be pretty close to the perfect criminal justice system. It would be interesting to see how this system would affect the ratio of pled to tried cases.

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Note: No, I did not go with the "solicitor" / "barrister" names. They're quaint and British and anglophiles love them, but I think we should go with names that say what they mean and mean what they say (it's the American way). Reanimating those titles would just be a way of trying to puff lawyers up.

Ken Lammers . . . Permalink . . . 1 comments

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Ambush in Bartlette
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

Opening Statements
Advice for New Prosecutor1 ~ 2a ~ 2b ~ 2c ~ 2d

Specific Cases

Legal Theory

Back When I was a Defense Attorney

Client Communication
~~~~~~~~~~~~~~~

CYA Letter: Felony Client
CYA Letter: Appeal

-----

Dear Mr. Jailhouse Lawyer
Conversation 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
FEB08
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

Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
Southern District of Fla.
Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court

Virginia Blogs

SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato

Worthwhile

Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage

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.

Tech &
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Spill.com
Tekzilla

Copyright

Everything herein is copyrighted by Kenneth Frank Patrick Lammers Junior. License for use of particular posts is granted so long as this site is linked to and credited. Serial republishing of all or the majority of posts on a separate website from CrimLaw is forbidden.

5/27/2012

They Sacrifice, We Benefit.

5/23/2012

Centre: The College, The Study, The Legend

5/20/2012

Interesting Things You Find When reading the New Laws

5/15/2012

Good Cop

5/15/2012

When You Are Going to Rob Someone Keep an Eye on the People Around You

5/04/2012

United Breaks Guitars

5/03/2012

The Dead Horse

5/03/2012

Recreating the American Criminal Legal System: Inquisitorial and Adversarial

Archive

Copyright

Recreating the American Criminal Legal System:
Inquisitorial and Adversarial