05 July 2003
With apologies - posting will be light today. My Lab was kind enough this morning to bring me my glasses when it woke me (right off the kitchen counter). You might imagine the kind of damage a Lab crunching down on your glasses can do. I've kind of put them back together by bending the frames and putting the glass back in but the right lens is chipped and everything looks strange. Reading these little letters just ain't working - I'm off to buy a new pair and then to the office where I'll actually do work that someone (hopefully) will pay me for.
Maybe I'll post tonight if I can't find something better to do.
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TalkLeft referred to me by an old nickname I haven't heard for years and it led to me messing around with the html hereabouts. Those are war hammers up there. I'm not sure I like it. Michael and the Aquinas statement may return shortly.
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04 July 2003
A job opportunity for somebody out there (I don't qualify):
Profession: Legal
Location: New York City, NY (US)
Job Title: CRIMINAL ATTORNEY NEW YORK CITY CHELSEA AREA
Date Posted: 2003-07-02 00:27:00
Status: Full-Time
Contact:
Daniel Furman
45 W 21st Street
New York, NY 10010
212-242-8507 (phone)
212-243-2711 (fax)
Description:
CRIMINAL ATTORNEY NEW YORK CITY CHELSEA AREA. Law firm seeking criminal attorneys for expanding prison case unit. Must be licensed in New York. Also need Pennsylvania, New Jersey, California, Nevada and Florida. Other states should apply as we are continuing to expand. Beginners will be considered. Must have a civil rights minority assistance mindset. We are bleeding heart liberals who believe the constitution is being destroyed by bad case law and overzealous politicians who campaign for office on the backs of the poor. Get it? If you desire to join the fight to save our civil rights conatct us today. Our web site if www.ffnyc.net The Daniel Furman Law Firm. 212-242-8507.
Well, at least they're honest.
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As long as they can come up with a bogus reason, they can still profile you.
An officer stops a lady because rosary beads were hanging from the rear view mirror. Now - before you start thinking the stop was based upon the fact that all Catholics are nefarious, evil, and must be stopped as they drive down the street because they are obviously up to no good - let me explain. The rosary was blocking her view of the road. I mean, the beads on a rosary are just so huge that they just might keep you from seeing that fly on your windshield or maybe even that kid crossing the street a mile or so down the road. And then there's the Crucifix which at anything from 3/8" to an entire inch keeps you from being able to see that car in front of you every time.
The Defense, for some unfathomable reason, claimed that this was a pretext stop and that profiling was taking place.
The AUSA's explanation? "[C]ourts generally look at the actual reason for a stop, not at what might have initially made the officer suspicious."
Believing a level of decorum is due my fellow practitioners I will describe that with the kindest word I can find: disingenuous. Courts have loudly proclaimed that they don't care what the real reason for the stop is as long as there is some sort of incredibly flimsy legal excuse. "[Case law] foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved." Whren. "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon.
The general excuse given by the courts for this is that they cannot look into the mind of the officer and determine his subjective intent. O.K., if the judges are going to abdicate this responsibility, then they should hand that role to the group of fact finders uniquely qualified to determine who to believe: a jury. Let's see if the prosecutor can sell a group of citizens on the fact that a rosary on your rear view mirror is an actual reason to pull a car over. Or if the prosecution can convince a jury that someone who is in the presence of an officer - in uniform, with a gun, nightstick, and handcuffs - actually has the right (and knowledge of that right) to tell an officer to shove off and leave or drive away. It's an incomplete idea but it strikes me as more protective of our liberties than the system as it stands currently where judges refuse to protect them.
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Sw Virginia Law Blog points to an article on video conferencing in Deleware.
We have this in Chesterfield (at least partially). Each courtroom has a large flat screen plasma T.V. hanging on the wall and a small screen by the judge. General district courts have a small screen in the front of the bench so that the pretrial service guy and the lawyer can see the Defendant. I believe the newest Circuit Court has three or four small screens built into the bar in front of the jury box. All the small screens are set up so that they can slide down out of sight while not in use. Of course, every courtroom has a camera set up to video the bench.
It's pretty cool and utterly useless. The only place that it is used for is the local jail which is about a minute drive from the court. Used only for pre-trial hearings such as notification of charges and bond issues, it saves the deputies some security concerns and time because they do not have to take the prisoners out of the jail and search and shackle them etc. But that it badly outbalanced by the cost which I make easily over $100,000 just for the T.V.'s on the wall (probably much, much more) and I figure cost as much, or more for all the little screens built into the benches. Now, to be honest, it can be done much cheaper. Colonial Heights rolls out a $300 RCA TV and the camera on an A.V. cart when they want to use the system. If the expense were that minimal the security concerns might justify it (especially in Colonial Heights where the jail is in an entirely different city). But even then, Chesterfield never uses it for the jails which are farther away. The deputies are sent to go pick those people up and bring them to the courtroom. And the reason? It's not because the system won't work; it's scheduling difficulties.
Oh well, enough of that rant. Things are the way they are and Chesterfield spent that money before I became a taxpayer here so It didn't come out of my pocket.
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The Jury in Britain:
A QC argues the necessity of juries if the people are to be protected against the sovran. A Deputy Police Commisioner makes the argument for giving up this protection of liberty in order to gain some security.
I'm biased - read and decide yourself.
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Spit on an officer spend your entire life in prison.
Yesterday I saw but didn't get around to commenting on this and Matt over at Stop the Bleating! commented on it (and was kind enough to tell me about it) and Eugene Volokh comments that he hopes it will be overturned on State Constitutional grounds.
Here's the statute. It doesn't have a specific penalty attached so here's the general punishment for a felony in Oklahoma. It doesn't appear under the minimum sentence section. So he must have been sentenced under the multiple offender statute:
O.S. sec 51.1-4.C. Every person who, having been twice convicted of felony offenses, commits a subsequent felony offense within ten (10) years of the date following the completion of the execution of the sentence, and against whom the District Attorney seeks to enhance punishment pursuant to this section of law, is punishable by imprisonment in the State Penitentiary for a term in the range of three times the minimum term for a first time offender to life imprisonment. If the subsequent felony offense does not carry a minimum sentence as a first time offender, the person is punishable by imprisonment in the State Penitentiary for a term in the range of four (4) years to life imprisonment. Felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location. Nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death.I suspect that this guy has a substantial record if the judge brought the wrath of God down on him like that.
Still, seems a wee bit excessive.
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Will the Commonwealth kill these people or not?
Swisher:
Governor Warner's clemency in the case where an improper instruction was given is only three weeks during which time he has told the attorneys for the Defendant to go see if they can get the Virginia Supreme Court to return the case to court for resentencing:
Swisher's attorneys, Steven D. Rosenfield and Anthony F. King, said they will ask the state's high court to consider their case, but believe their chances of success by the governor's "artificial deadline" are nil because the court is not hearing oral arguments now.The attorneys asked Warner for more time because the ridiculously short deadline. Warner declined; he's found a way to try and divert responsibility for the decision from himself and he's sticking to it.
The Daily Progress weighs in in favor of "conditional clemency" wherein the Governor sets aside the death penalty but leaves the prosecution with the option of a resentencing hearing. It's a good solution. I'm not sure that the law allows it but it is a good idea.
Walton:
Hairsplitting 101:
The judge found him not mentally retarded but may still find him incompetent.
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Emigration and Fraud:
(1) Federal prosecutors said Wednesday they busted a scheme to arrange sham marriages between Pakistani men and American women that paid the wives $60 a month.
(2) Two clerks at the Virginia Department of Motor Vehicles and four associates helped more than 1,000 people obtain fraudulent Virginia driver's licenses
In both cases law enforcement said that no terrorism was suspected. I don't know about the first (in fact, I am a little suspicious) but the second one is just Hispanics trying to get licenses while they're up here doing all the crummy work we won't do for ourselves.
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What do ya'll know, police really do pull large scale raids on places where they think someone might be drag racing.
I thought this sort of thing only happened in the movies. Still, the aiding and abetting illegal racing charge seems a little bogus if they can't point to someone and say "Those two were racing."
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If you're going to kill your wife make sure you don't have a conscience. The police look down on this sort of thing.
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Strange things said by courts.
My personal favorite is from the 9th:
"We need not be hierophantic to divine the fact that Socal preferred keeping the Malibu property . . . but we also need not be rhadamanthine to decide that it would be inequitable . . ."If you're able to understand that without looking up a couple words you must have read the entire dictionary at least once in your spare time.
Of course the 6th Circuits rap translation is worth seeing too.
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Dell's going to stop using prison labor in its recycling. They faced criticism from enviromental groups:
[T]he Silicon Valley Toxics Coalition said in its report that inmates who work at the prison recycling operation were not protected by the Fair Labor Standards Act and were paid from 20 cents to $1.26 an hour.At first when I read that I thought that it meant that the prisoners were knee deep in toxic sludge but as I look at it again I think that the complaint is that they're not getting paid enough. If so, this is a case of a group doing more harm than good.
What's the worst complaint about prison? The overwhelming boredom. And boredom leads to trouble. Being able to get out and do something is a privilege which gives inmates an incentive to stay out of trouble. A living wage is a good thing but they already have food and housing and clothing provided. The ability to do something is payment in itself and the little money they actually get gives them some money for the canteen. Of course, they won't have any of this now. Congrats to the Silicon Valley Toxics Coalition.
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03 July 2003
Did they round up the usual suspects? It appears that the U.S. Magistrate thinks so. He keeps putting the terrorist suspects back out on the street. Of course if the government cannot provide more than "The men are accused of training for combat while on paintball outings in the Virginia countryside" I'd probably put them back out on the street too.
Paintball? You're a terrorist because you play paintball?
Heck, I do things which are more suspicious than that1. I have Arabic books and music and I even peruse the Arabic online newspapers on occasion. The FBI must be scheduled to come crashing thru my door any moment (all I ask is that you don't shoot my dogs).
1 Never fear - the reason I do these things is that once upon a time the U.S. Army sat me down and told me "YOU WILL LEARN ARABIC, PRIVATE" and then used me for 6 years in various capacities before I left for college and law school. I'm Catholic and you might recall that there have been a few spats between Catholics and Muslims over the years. On the other hand there is the command "in hoc signo vinces;" maybe I could go out and become the world's first German-American, Southern, Catholic terrorist (note: for those of you at an alphabet agency or the DOJ - that is what is known as a joke).
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Color me impressed: the Judge in the Malvo case did the right thing and moved the case to another part of the Commonwealth.
"Venue should be transferred to a jurisdiction outside the Washington-Richmond corridor, where many citizens lived in fear during the month of October 2002 as a result of the crimes with which the defendant is charged," Fairfax County Circuit Judge Jane Marum Roush wrote.It's the right decision and Judge Roush must be commended for reaching it.
And then, of course, there was the reply from learned counsel:
"Nonsense!" responded Fairfax Commonwealth's Attorney Robert F. Horan.Who can argue with such a well grounded legal argument?
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And Governor Warner punts: he delays the killing of the prisoner and points the lawyers over to the Virginia Supreme Court. Only, the issue wasn't preserved during his trial so the prisoner doesn't really have any grounds to go to the Supreme Court. But he got everybody off his back (at least for now).
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More fallout from the federal supreme court's rejection of California's ex post facto law: Charges against a former judge are dropped.
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A judge sentenced the former Mayor of Bridgeport to 9 years in federal prison and told him that his corruption "led to a general cynicism about politics." Because, as we all know, the citizens had such a blind and childlike trust that politicians were honest before this case.
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02 July 2003
The Defendant gave her attorney a box full of documents shortly before trial. The attorney used the documents in trial without verifying their authenticity. The documents were fraudulent. The Defendant tried to get a new trial because the lawyer didn't check to see if she was lying to him.
The 3d Circuit applied extreme common sense to this situation:
"If this court were to grant Mrs. Lamplugh a new trial based on her claim of ineffective assistance of counsel, we would allow a defendant to manipulate the justice system by knowingly presenting fabricated written documents to her counsel in an attempt to deceive the court, the jury, and the government into accepting her theory of defense, or by successfully gaining a new trial when the strategy failed because the defense counsel did not detect the fraud."Good call.
I cannot recall the number of times I've had clients show up on the day of court with a manila envelope stuffed with papers or a witness whom I've never heard of. Sometimes they're even relevant. How in the world am I supposed to know if it's a lie? If it looks or sounds correct and my client vouches for it, I'm stuck with it. Anyway, even if my client gets the information to me a month before the trial, I don't think I'm supposed to presume my client is lying.
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If you are a man working in Saudi Arabia remember one thing: Women remain chattels in Saudia and you are responsible for every act she takes. So, if she steals from the hospital she is working at you will serve 16 months in a Saudi jail, sleep on a blanket near a hole in the ground (the hole is the toilet for 20 men), get barely edible food, and get 50 lashes every fortnight.
Gee, what enlightened allies we have.
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The Judge in the John Allen Muhammad case found the anti-terrorism death penalty statute constitutional. No shock there. How often do you see a trial judge rule that a State law is uncostitutional? Still, it's something you have to argue in order to preserve it for the appeal.
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Fallout from the federal supreme court's overturning of the California ex post facto change in its molestation statute's statute of limitation:
(1) Charges being dropped against several priests in California.
(2) Charges against a coach are dropped and apparently charges against several others will be.
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Official Misconduct (Various law enforcement officials who have been accused of doing wrong):
(1) The mildest: "It was a situation where the officer was exaggerating what he saw in order to justify an illegal stop."
(2) Drugs: "Cortez was still with the Los Angeles Police Department when he was dealing drugs from his Burbank, Calif., home and running interference for his partners in the drug ring. He resigned in March after federal investigators in Iowa filed drug charges against him."
(3) Theft: "A sheriff's officer caught on tape zealously singing about stealing ammunition from the department's firing range was sentenced to the maximum 16 months in prison."
(4) Maltreatment: "Accusations against some of the former guards included kicking shackled prisoners, smashing their heads into walls and mixing human waste into their food."
(5) Malpractice: "The Center for Public Integrity, a nonprofit organization, said in a study of 2,341 jurisdictions that 2,000 criminal cases had been reversed or a sentence reduced since 1970 because prosecutors had stepped over the line." I believe this has been fisked elsewhere for not really being a good statistical study but when you consider how hard it would be to uncover prosecutorial misconduct it is still significant.
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Virginia's new anti-abortion criminal statute didn't even make it thru an entire day. It looks like an interesting case. There has been what appears to be a manipulation of the system by the plaintiffs (to get the judge they wanted). When that failed a new judge was appointed. Not that it helped Virginia. Without hearing the case, the judge has already indicated he expects to find the law unconstitutional. When the Attorney General's office asked for 120 days to prepare for trial the judge replied "I don't know why you need 120 days for a no-brain case like this."
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01 July 2003
Rural Judge v. City Kid (Seen in a rural courthouse):
A Richmond kid who managed to wander into a rural county two counties away from Richmond (and get in some minor trouble) is called to the bench. The judge explains to him that he is in court to answer a show cause as to why he shouldn't be imprisoned for not doing the community service she required. He pleads not guilty.
Prosecution: "We transferred him to Richmond Community Services and they assigned him community service 2 and 1/2 miles from where he was living. He didn't do any of it; he said it was too far to get to."
Judge (confused): "2 1/2 miles was too far?"
Defendant: "Your Honor, it was way over by the Diamond and there were no buses I knew of going there."
Judge (incredulous): "So you couldn't walk 2 1/2 miles to keep from going to jail?"
Defendant: "That's a long way from my house. It's not anywhere near."
Judge (not happy): "Well if you can't walk just 2 1/2 miles to avoid going to jail I'm going to impose the 10 day sentence."
The kid is led away and thus is illustrated one of the eternal truths of practicing around here: rural folks will walk, hitch, or drive their tractor across four counties to meet with you, keep their court appointment, and do what the judge tells them. Richmonders can't travel four blocks unless they have a car or there is a bus route. And rural judges just won't buy the "it was too far away argument."
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