17 July 2003
Child Abuse Cases:
(1) A man recieved 30 months for trying to buy underage porn from a 13 year old girl (who turned out to be a fed).
(2) On the other hand, a man who transported a 13 year old boy from Virginia to North Carolina received between 300 and 369 months in a penitentiary for five counts of statutory sexual offenses and first-degree kidnapping. Seems adequate.
(3) A convicted molester has skipped out on his parole in Roanoke.
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The House of Lords as the Last Bastion of the Rights of Commoners:
(Found on Ninomania)
Labour is pushing hard to abolish the common man's right to a jury and the House of Commons has gone along with it. The House of Lords has voted overwhelmingly to uphold a commoner's right to a jury. Very interesting.
I must admit to ignorance as to what the exact dynamic is between the House of Commons and The House Lords. It appears as though there may be some way for Blair's government to get around this. But the article also seems to indicate that if it goes that way the Lords could scuttle the entire crime bill.
Long Live the Lords!
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Trying to make it a federal crime to swap songs online. Note to the RIAA: in the larger scheme of things, none of the criminal prosecutions and threats you have engaged in so far have worked. Find a better way.
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You lead troopers on a chase, crash your car, and then try to attack a trooper armed with a pistol with a cast-iron frying pan. For some reason, the judge thought that was enough to order a mental evaluation.
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If your local police department has a spare $100,000 sitting around it might spend it on this device to make its officers superior drivers.
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Stymied by those restrictive decisions which the federal supreme court has handed down regarding loitering? No problem, require your local unwamteds to have a license.
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Creating Law from Whole Cloth:
A lawyer had a bad conflict in scheduling court dates. We all have them, but this fellow was having a particularly bad day. He got stuck in one court and didn't call to tell the other court what was going on until two hours after his trial was to start. The second court held a hearing and found him guilty giving him a $1,000 fine, 30 days suspendened jail time, and forbade him practicing in the jurisdiction for one year.
The problem is that Virginia's Legislature has limited the ability of courts to punish contempt to 10 days and $250 unless a jury has been impaneled. See 18.2-457. A pesky limitation which the judge tries to get around by holding a "plenary" hearing on "indirect" contempt. In order to do this the judge finds that the summary contempt statute does not apply because this situation doesn't fall under 18.2-456(1). He's right it would fall under either 18.2-456(5) or 18.2-456(6) and still be constrained under 18.2-457.
Of course, the attorney appealed (we are by nature litigious). The Virginia Court of Appeals upheld the decision. It waxes on quoting Michie's Jurisprudence, Barton's Law Practice, AmJur, etc. to show that the attorney is in contempt and that the court has an inherent power to find contempt. Which may be correct as far as it goes.
The Appellate Court then goes on to quote a 1904 case for the proposition that there are summary/direct and constructive/indirect contempt. Yes, I know it's a stretch but, if you ignore the fact that the primary purpose of "indirect" contempt is to punish citizens for exercising their right to free speech, it could actually work as an excuse for the judge's actions except for one thing; the case it cites - indeed the very quote it uses - states that "the power of the court to punish is the same in both cases." Burdett v. Commonwealth, 103 Va. 838, 843, 48 S.E. 878, 880 (1904). So, if the court has limited power in punishing summary contempt it only has limited power in punishing indirect contempt (10 days = 10days; $250 = $250). But the court just passes by this without even so much as an attempt to explain it away.
So now we have new law in the Commonwealth. If your client commits an act which is contempt while directly in front of the judge during a proceeding in his case the judge can only give him 10 days but if he does something before or after the hearing he can be punished in whatever manner the judge deems appropriate (although I think there is still a six month limit out there without a jury).
Hopefully this will go to the Virginia Supreme Court for "clarification."
Here's the case.
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16 July 2003
Death Penalty Cases:
(1) Fewer people are making it to death row.
(2) How NOT to convince the judge that the prosecutor is wrong when he says you killed your children out of anger:
"That's not true! That's not true," Black screamed—then used his shackled hands to flip over the heavy wooden table, shattering its glass top and breaking off two legs.(3) It seems more and more likely that the Muhammad case will change venue.
(4) After some good testimony from a detective in the NC murder trial the prosecution does something weird. The prosecutor asked the detective if he was aware that the Defendant's son was having an affair. Very strange.
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Police Activities:
(1) There's a new sher'ff in town. Does that dream job a a tropical island seem too good to be true? There might be a reason for that.
(2) The California Supreme Court has thrown out a confession in a murder case because "[the detective's] message to the defendant could not have been clearer. [The detective] would not honor the defendant's right to remain silent or his right to counsel until the defendant gave him a confession." The detective further admitted "that he was taught on the job to disregard a suspect's Miranda rights."
(3) It's bad when the Police Chief testifies against you for something you did as an officer.
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Kidnap 5 women and keep them as slaves in NY = 18 years to life.
Judge: "You are a sick coward. You are an evil man. You are a kidnapper and rapist, a master manipulator of people and the truth, but your reign of terror is over."
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The Dirty Little Secret: Crime is Down
No one seems to like it when crime rates fall - not even the Brits.
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Sex offenders in Des Moines are not allowed to live within 2,000 feet of a school or child care provider. The ICLU is challenging in federal court and one judge has ruled the law unconstitutional because "[t]here are no studies to prove or even suggest a 2,000-foot restriction enhances the safety of children."
You can't have studies on every single subject. Sometime you just have to rely on common sense.
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15 July 2003
Bryan Gates, at I respectfully dissent, talks about the "no-drop" policy of a prosecutor in a domestic court in NC.
Here in the Commonwealth, I've seen prosecution offices with the same policy. In Richmond Domestic court I once watched as four straight domestic abuse cases came before the bench and the wife refused to testify against her husband. The prosecutor's solution? She had talked to the officers ahead of time and each time, as soon as the judge dismissed the charge against the husband, the officer turned around and arrested the wife for filing a false report. OUCH.
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Jason, from Sixth Circuit Law, passed on some comments about the genetic predisposition defense which I mentioned here. I quote, in toto, because I think he is pretty much dead on:
If Landon May prevails in his attempt to get the court to recognize that he was predisposed to engage in violent activity, shouldn't the court keep him locked up because, if released, he cannot help but to engage in violent activity in the future? Also, isn't it in the best interest of the state to incarcerate every relative of his that is sufficiently close to his father's bloodline? Now I understand that a crime is made up of both mens rea and actus reus, but the state has an overriding interest in protecting its citizens against violent activity.The scary thing is that we've dabbled with this before (remember "Three generations of imbeciles are enough?") and we're dabbling with this right now (civil commitments).
Take, for example, the hypothetical of an innocent little girl. This little girl has never done anything even remotely criminal in her entire life. However, she was born with a unique "gift." When this innocent little girl comes within 100 yards of a person, that person dies in 1 week. When she comes within 10 yards of a person, that person dies within 1 day. When she touches a person, that person dies immediately. Now, this little girl has done nothing criminal. She hasn't the intent necessary to be locked up for the commission of a crime. However, would any sane person argue that this girl has to be removed from society for the protection of the community? Would anyone argue that if taking the life of the girl were the only way to protect the people that the state would not have an obligation to do so?
If one subscribes to the genetic predisposition to commit violent crime, then the same could be said about Mr. May's family as was said about the innocent little girl.
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A judge in Port Adelaide, South Australia:
“You’re a druggie and you’ll die in the gutter. That’s your choice . . . I don’t believe in that social worker crap . . . You can choose to be who you are. You can go to work. Seven million of us do it while 14 million like you sit at home watching Days of Our Lives smoking your crack pipes and using needles and I’m sick of you sucking us dry.”Not much I can add to that.
The magistrate then inveighed against government taxes and concluded: “It’s your choice to be a junkie and die in the gutter. No one gives a s*** but you’re going to kill that woman who is your mother, damn you to death.”
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Orin Kerr, the gentleman kind enough to mention this site on the Volokh Conspiracy has left the blogging world to work at the Federal Supreme Court. Good Luck.
BTW, Orin, if you are still reading the blawg please do those of us who practice criminal law the great favor of convincing as many people up there as possible that short, simple, non-multi-part decisions are what those of us in the trenches need. A 40 page plurality, two 20 page concurrences, two 20 page dissents, and one 40 page destruction of the plurality may be very scholarly, fun for lawyers to read, and try to cover every possible angle (of course never succeeding). However, one simply cannot stand in a General District Court - where the judge has maybe 10 minutes allotted for your case -, plunk down a 100+ page decision in front of the judge, and argue how section I.A(3) of the plurality combined with section II.D(1) of the first concurrence and IV.B(6) of the second concurrence means that this pretext stop violates the rights of the Defendant.
Well, I guess you could try (if you were never, ever going to appear in that courthouse again in your lifetime).
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News from the Murder Cases:
(1) In the NC Michael Peterson case the prosecutor is having further problems. He played the 911 tape and the Defendant actually cried. It was pointed out that the dispatcher wrote "hysterical" on her notation of the call. Then the prosecutor asked the dispatcher if she could tell if the Defendant was feigning. "Feigning"? Who the heck uses a word like feigning in a jury trial? It just drips of the type of elitism that screams at the jury "I'm above you." the word is faking - FAKING! Other evidence came in showing that the scene wasn't treated initially as a crime scene and that the investigation began the month after they had locked up the Defendant.
(2) Trying to get the court of appeals to recognize a genetic predisposition defense. Personally, I believe in free will but when you're desperate you make whatever argument is at hand.
(3) Never give up. Detectives in Philadelphia have made an arrest in a 1987 murder.
(4) In Detroit they used to jail you if you refused to cooperate in a murder investigation. Under the theory that "[y]ou can't hold girlfriends or cousins just to get other people to turn themselves in, or you're going to pay. We're not set up for KGB justice," Detroit is now being made to pay - dearly.
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Gangs are everywhere:
In the small town of Staunton they are starting to have their presence felt.
And here are two words I never thought I'd see together: "Lebanese" and "mafioso". But here they are joined in synchronicity.
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Child Molestation Issues:
At least 800 cases have been dropped because of the federal supreme court's rejection of California's ex post facto law. Mind you, the Court reached the right decision but this is a good reminder of how the things done in a courtroom effect the real world.
Here's an appropriate result for a man who abused a 15 month old girl so bad that she went to the hospital. On the other hand, note how the mother only got suspended time even though she "allowed Hackney access to her twins, a boy and a girl, even though she knew that he was abusing the toddlers." Totally inappropriate.
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14 July 2003
The orchid tycoon got 18 years in prison. At least they didn't kill him:
[China] sometimes executes people convicted of such nonviolent crimes as tax evasion and smuggling.
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A doctor in Oakland has written over 7,500 prescriptions for medical marijuana. A medical panel is trying to suspend his license because he is "writing those recommendations without conducting sufficient medical exams and [] improperly maintaining medical records. . . The standard requires physical exam, medical history, mental status exam, follow-ups to ensure that medication or treatment is working."
The good doctor is fighting back arguing that he accomplishes all that when "he spends at least 15 minutes with each patient before recommending marijuana."
Hmmm . . . one might suspect that this doctor's propensity for handing out marijuana for everything from the common cold to full blown AIDs probably got around and that a number of those 15 minute exams were pretty much shams. Just a thought.
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The federal government is refusing to let Moussaoui call a witness he believes vital to defending himself despite a court order. This article describes what might happen next.
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Bravo! The residents of West Palm Beach are to be congratulated for keeping someone from leaving the scene after he hit and killed a child. On the other hand, if the deputies had not arrived thre child probably would not have been the only fatality.
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Restrictions on criminal defense attorneys who might defend those in front of military tribunals are so stringent that refusals to participate in what some worry will be a kangaroo court are mounting.
Personally, I think that a lot of attorneys could live with the restrictions but here's the problem: In order to defend someone you have to pay to get a security clearance, pay to travel back and forth to Guantánamo, and receive no compensation for the case. Some may have the money to waste doing this but I sure don't.
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