[A man in Utah] was sentenced Monday to a year in prison for taking a 15-year-old cousin -- who was also his aunt -- as his wife.
27 January 2004
Wearing a bumblebee costume to court?
I guess that makes it pretty darn hard for me to complain about my clients showing up in a Packer jersey and jeans about 6 times too large.
I guess that makes it pretty darn hard for me to complain about my clients showing up in a Packer jersey and jeans about 6 times too large.
26 January 2004
A Week in the Life of a Criminal Defense Lawyer:
Monday - MLK Day ~ No Court
Tuesday - I have to go to court in the morning for a client who I know has hired another attorney. The client had told me a month earlier that he had hired this attorney but the attorney never sent me an order of substitution. So I go to court sit there for 15 minutes, walk up, and am withdrawn from the case. In the afternoon I come back to court and get my client's possession of heroin case dropped by the prosecutor because the lab analysis showed that the substance the officer seized, relying on his training and knowledge gained from years on the street, wasn't any type of illegal substance. I get another client's driving on a suspended license charge continued so that she can get her license before she faces the court.
Wednesday - I get up and am in the middle of getting dressed for the general district court's 8:30 docket when I look at my PDA's calender and realize that I'm actually due in court at 8:15 because it's a return (to make sure my client is paying restitution) and the judge involved has his returns start 15 minutes before court is scheduled to begin. In that instant I go from being on schedule to being at least 10 minutes behind. I rush out the door and burn rubber - of course, never exceeding the speed limit. I even tie my tie at a stoplight on the way in (the disturbing thing is that it turned out better than it usually does when I tie it in front of my bathroom mirror). I get to the courthouse 5 minutes after docket was to begin; I'm feeling pretty good because dockets never start on time so I'm fairly sure nothing will have taken place yet. Then I look at the bulletin board where the docket is posted. The Judge has changed the time he does his returns from 8:15 to 8:00 a.m. and nobody bothered to tell me. I rush down to the courtroom and talk to the deputy at the back door who tells me that my client had already been called, that he had paid his restitution, and the client was released from supervision. I check this - it's absolutely correct - and then I go upstairs to the circuit court and wait until the docket there starts at a little after 9:00 a.m.
In the circuit court I have a client who had been convicted by the general district court, upon a plea of guilty, of assault and battery for attacking and choking his sister-in-law. He'd received the maximum penalty that court could give him (12 months) and exercised his absolute right to appeal the decision to the circuit court and get a trial de novo. I go and talk to the prosecutor, angling to get an offer which might get my client a couple months less in jail, but the prosecutor refuses to deal. Then I offer that we both proffer the testimony on my client's plea of guilty but the prosecutor declines that offer as well: "If I don't put her up on the stand how am I going to get the 12 months again?" Okay, fine. My client pleads guilty. The prosecutor puts the victim on the stand to testify how my client had run across a school lobby and started choking her until she was almost unconscious, then tossed her aside, and ran off. She swears that there were no problems between her and my client. Then I put my client on the stand to testify about how he had been jumped the night before by three guys who had cut his face and told him to stay away from his sister-in-law. I take a pair of panties out of my folder and holding it with my pinky and thumb ask him if he recognizes it. "Yes sir, that's a pair of her panties which they threw in my face." Me: "Your Honor, I don't have a bag or anything, if you want to see them . . ." Judge: "That's okay Mr. Lammers, I'll let you hold on to them." Client then testifies that he had gone to ask her why she sent them and lost his temper when he saw her. In the end the judge sentences my client to 6 months in jail rather than the 12 months he had received in the lower court.
I eat lunch with a deputy who works on the road (serving papers, evicting people, etc.). Being a good guy he tells me a shortcut to the rural county courthouse I am going to that afternoon. I jump on this road and drive along for miles and miles as the road twisted and turned through the Virginia countryside. It kept getting smaller and smaller and smaller. Finally, the last couple of miles were about a car and half wide with no lines at all alternating between areas which had been covered with sloppily laid blacktop and areas where you dodge deep potholes (which my '89 Saab just ain't gonna handle). But in the end it did get me there about 15 minutes quicker. It might have even been quicker if I hadn't got caught behind that tractor for a mile or two.
My client in the rural county is appearing before the court for a sentencing hearing having previously pled guilty to 3 counts of distributing small quantities of cocaine. I arrive a hour and half early so that I can go over his presentence report with him (as is fairly common, the report showed up too late for me to get to the jail and go over it with him). It takes all of 15 minutes; if I hadn't come early I'm sure that discussion would have taken an entire hour and half. So I spend the next hour plus talking to a deputy and a couple of guards from the jail until court opens at 2 p.m.
When the case is called I stand and point out to the judge my client's serious medical conditions. I point out that he was caught dealing minor quantities of cocaine. Then I point to a statement my client made to the probation officer as to his plan for self help after completing his sentence: "I don't make mistakes twice, I'll never do that again." I then proceed to argue to the judge that he should take my client at his word: "You see that the probation officer lists Mr. Smith's IQ at 76. Well, I just don't buy it. We can see from the record that Mr. Smith learns and doesn't make the same mistake twice. In '85 he was convicted of felony larceny [edit. comment: he stole a dog from the local pound - any theft of a dog is a felony in Va.] but he never made that mistake again. In '92 his charge of felon in possession of a firearm was taken under advisement and we never see him making that mistake again. Now we see him before the court on the only drug charge ever on his record. I tell you he's learned this lesson just like he did previously and it is obvious that a long sentence is not needed to drive the point home. I ask you to take him at his word and sentence him to as little time as possible." The judge listened politely and then proceeded to sentence my client to ten years on each count with eight years suspended, all three sentences to run concurrently.
As I am driving back from court I check my messages and there is one from the federal clerk's office. I call back and get assigned a case as I'm driving down the highway. At one point I just have to pull off the road because the clerk is giving me a lot of info and it's kinda tough to drive, write stuff down, and hold the cell phone all at the same time (for the record I was not writing while I was driving).
Thursday - I go to court for a client's preliminary hearing on a felony DUI (3 DUI's within 6 months) and her trial on a misdemeanor suspended license charge. After the hearing, I go to appeal the misdemeanor so that there is one sentencing event in the circuit court. I wait for the clerk to complete the paperwork of the person in front of me (who has already left). And I wait. And I wait. And I wait. And I wait. Meanwhile, the people who have been sent to the clerk by the traffic court pile up behind me. 5 people, 10 people, 20 people, 30+ people - the clerk is off in her own little world and doesn't even notice. Finally, the clerk walks back over to the window and realizes that if she doesn't move fast the line is going to back up into the courtroom. She shifts into fourth gear and gets my client's paperwork done in about three minutes. A forty minute wait for three minutes of work.
In the afternoon I have a client charged with driving on a suspended license. It's a particularly nasty form of driving suspended which will take my client's license for a year because he was convicted of a DUI three years prior. My client had been making efforts to get his license back - which usually leads to conviction under a statute which doesn't take his license - so I make a motion to continue the case. The judge won't have any of it. So then I run down to the law library and spend the next hour or so looking for any angle I can find to try to get this thrown out or reduced. I spend most of the time looking up a case which I think will prove my client not guilty. Bingo! Then I look a little further and figure out that the case has been made irrelevant by changes to the statute. Crud. Client has to plead guilty but he's happy with his 10 days in jail (weekends) and not all that concerned about having his license suspended even further.
Friday - I go off to another county to represent a client on a show cause for not paying off a fine. While waiting for the case to be called I see a lady walk up to bench. On the other side a bunch of prison guards and a detective come up. The lady then spends the next ten minutes or so trying to get the judge to assign an attorney to her case but he won't do it because a prior judge has decided she doesn't qualify. The prosecutor, trying to be decent about it, tells the judge a couple times that he is not comfortable trying this woman without a lawyer. When that doesn't seem to do any good he points out to the judge that a certificate of analysis was filed late and the lady is entitled to a continuance; he points it out a couple or three times but the lady doesn't seem to get it. Then the judge pointedly asks her if she wants a continuance (twice); it's very obvious she has no clue what's going on and finally she says "no." At this point I stand up and volunteer to take the case pro bono. The judge agrees and gives me a few minutes to talk to the client and the detective. Proving that no good deed will ever go unpunished, the first thing the detective says to me is "I haven't got all the transcripts here, but I've got fifty pages here and I can get you the rest." Shortly after that conversation I go into the courtroom and ask the judge to grant a continuance which he does. Then he calls my next case and, despite my best efforts, refuses to give my client a continuance so that my client can get his fines paid. He points out that my client has had 5 or 6 continuances already over a 7 month period and there have been no payments made at all. I show him medical records from my client showing that he had congestive heart failure about six months ago and has only been back to work recently. The judge isn't having any of it. With my client almost crying next to me (in fake "whispers": tell him this - tell him that - what'll I do?), the judge sentences him to 30 days in jail but agrees that he can do the time on weekends if I can find a jail which will take him and sets his date to report off for a week.
In the afternoon I sit in my office waiting for clients to come in and two actually do. It's a miracle two clients have shown up two weeks in a row. Of course, the federal client came from 4 counties on the other side of Richmond so I spent the better part of a hour on the phone trying to get him to my office. Oh well, at least I know the feds will pay me for all my work.
Addendum: Matt comments on this post here: Stop the Bleating!
Monday - MLK Day ~ No Court
Tuesday - I have to go to court in the morning for a client who I know has hired another attorney. The client had told me a month earlier that he had hired this attorney but the attorney never sent me an order of substitution. So I go to court sit there for 15 minutes, walk up, and am withdrawn from the case. In the afternoon I come back to court and get my client's possession of heroin case dropped by the prosecutor because the lab analysis showed that the substance the officer seized, relying on his training and knowledge gained from years on the street, wasn't any type of illegal substance. I get another client's driving on a suspended license charge continued so that she can get her license before she faces the court.
Wednesday - I get up and am in the middle of getting dressed for the general district court's 8:30 docket when I look at my PDA's calender and realize that I'm actually due in court at 8:15 because it's a return (to make sure my client is paying restitution) and the judge involved has his returns start 15 minutes before court is scheduled to begin. In that instant I go from being on schedule to being at least 10 minutes behind. I rush out the door and burn rubber - of course, never exceeding the speed limit. I even tie my tie at a stoplight on the way in (the disturbing thing is that it turned out better than it usually does when I tie it in front of my bathroom mirror). I get to the courthouse 5 minutes after docket was to begin; I'm feeling pretty good because dockets never start on time so I'm fairly sure nothing will have taken place yet. Then I look at the bulletin board where the docket is posted. The Judge has changed the time he does his returns from 8:15 to 8:00 a.m. and nobody bothered to tell me. I rush down to the courtroom and talk to the deputy at the back door who tells me that my client had already been called, that he had paid his restitution, and the client was released from supervision. I check this - it's absolutely correct - and then I go upstairs to the circuit court and wait until the docket there starts at a little after 9:00 a.m.
In the circuit court I have a client who had been convicted by the general district court, upon a plea of guilty, of assault and battery for attacking and choking his sister-in-law. He'd received the maximum penalty that court could give him (12 months) and exercised his absolute right to appeal the decision to the circuit court and get a trial de novo. I go and talk to the prosecutor, angling to get an offer which might get my client a couple months less in jail, but the prosecutor refuses to deal. Then I offer that we both proffer the testimony on my client's plea of guilty but the prosecutor declines that offer as well: "If I don't put her up on the stand how am I going to get the 12 months again?" Okay, fine. My client pleads guilty. The prosecutor puts the victim on the stand to testify how my client had run across a school lobby and started choking her until she was almost unconscious, then tossed her aside, and ran off. She swears that there were no problems between her and my client. Then I put my client on the stand to testify about how he had been jumped the night before by three guys who had cut his face and told him to stay away from his sister-in-law. I take a pair of panties out of my folder and holding it with my pinky and thumb ask him if he recognizes it. "Yes sir, that's a pair of her panties which they threw in my face." Me: "Your Honor, I don't have a bag or anything, if you want to see them . . ." Judge: "That's okay Mr. Lammers, I'll let you hold on to them." Client then testifies that he had gone to ask her why she sent them and lost his temper when he saw her. In the end the judge sentences my client to 6 months in jail rather than the 12 months he had received in the lower court.
I eat lunch with a deputy who works on the road (serving papers, evicting people, etc.). Being a good guy he tells me a shortcut to the rural county courthouse I am going to that afternoon. I jump on this road and drive along for miles and miles as the road twisted and turned through the Virginia countryside. It kept getting smaller and smaller and smaller. Finally, the last couple of miles were about a car and half wide with no lines at all alternating between areas which had been covered with sloppily laid blacktop and areas where you dodge deep potholes (which my '89 Saab just ain't gonna handle). But in the end it did get me there about 15 minutes quicker. It might have even been quicker if I hadn't got caught behind that tractor for a mile or two.
My client in the rural county is appearing before the court for a sentencing hearing having previously pled guilty to 3 counts of distributing small quantities of cocaine. I arrive a hour and half early so that I can go over his presentence report with him (as is fairly common, the report showed up too late for me to get to the jail and go over it with him). It takes all of 15 minutes; if I hadn't come early I'm sure that discussion would have taken an entire hour and half. So I spend the next hour plus talking to a deputy and a couple of guards from the jail until court opens at 2 p.m.
When the case is called I stand and point out to the judge my client's serious medical conditions. I point out that he was caught dealing minor quantities of cocaine. Then I point to a statement my client made to the probation officer as to his plan for self help after completing his sentence: "I don't make mistakes twice, I'll never do that again." I then proceed to argue to the judge that he should take my client at his word: "You see that the probation officer lists Mr. Smith's IQ at 76. Well, I just don't buy it. We can see from the record that Mr. Smith learns and doesn't make the same mistake twice. In '85 he was convicted of felony larceny [edit. comment: he stole a dog from the local pound - any theft of a dog is a felony in Va.] but he never made that mistake again. In '92 his charge of felon in possession of a firearm was taken under advisement and we never see him making that mistake again. Now we see him before the court on the only drug charge ever on his record. I tell you he's learned this lesson just like he did previously and it is obvious that a long sentence is not needed to drive the point home. I ask you to take him at his word and sentence him to as little time as possible." The judge listened politely and then proceeded to sentence my client to ten years on each count with eight years suspended, all three sentences to run concurrently.
As I am driving back from court I check my messages and there is one from the federal clerk's office. I call back and get assigned a case as I'm driving down the highway. At one point I just have to pull off the road because the clerk is giving me a lot of info and it's kinda tough to drive, write stuff down, and hold the cell phone all at the same time (for the record I was not writing while I was driving).
Thursday - I go to court for a client's preliminary hearing on a felony DUI (3 DUI's within 6 months) and her trial on a misdemeanor suspended license charge. After the hearing, I go to appeal the misdemeanor so that there is one sentencing event in the circuit court. I wait for the clerk to complete the paperwork of the person in front of me (who has already left). And I wait. And I wait. And I wait. And I wait. Meanwhile, the people who have been sent to the clerk by the traffic court pile up behind me. 5 people, 10 people, 20 people, 30+ people - the clerk is off in her own little world and doesn't even notice. Finally, the clerk walks back over to the window and realizes that if she doesn't move fast the line is going to back up into the courtroom. She shifts into fourth gear and gets my client's paperwork done in about three minutes. A forty minute wait for three minutes of work.
In the afternoon I have a client charged with driving on a suspended license. It's a particularly nasty form of driving suspended which will take my client's license for a year because he was convicted of a DUI three years prior. My client had been making efforts to get his license back - which usually leads to conviction under a statute which doesn't take his license - so I make a motion to continue the case. The judge won't have any of it. So then I run down to the law library and spend the next hour or so looking for any angle I can find to try to get this thrown out or reduced. I spend most of the time looking up a case which I think will prove my client not guilty. Bingo! Then I look a little further and figure out that the case has been made irrelevant by changes to the statute. Crud. Client has to plead guilty but he's happy with his 10 days in jail (weekends) and not all that concerned about having his license suspended even further.
Friday - I go off to another county to represent a client on a show cause for not paying off a fine. While waiting for the case to be called I see a lady walk up to bench. On the other side a bunch of prison guards and a detective come up. The lady then spends the next ten minutes or so trying to get the judge to assign an attorney to her case but he won't do it because a prior judge has decided she doesn't qualify. The prosecutor, trying to be decent about it, tells the judge a couple times that he is not comfortable trying this woman without a lawyer. When that doesn't seem to do any good he points out to the judge that a certificate of analysis was filed late and the lady is entitled to a continuance; he points it out a couple or three times but the lady doesn't seem to get it. Then the judge pointedly asks her if she wants a continuance (twice); it's very obvious she has no clue what's going on and finally she says "no." At this point I stand up and volunteer to take the case pro bono. The judge agrees and gives me a few minutes to talk to the client and the detective. Proving that no good deed will ever go unpunished, the first thing the detective says to me is "I haven't got all the transcripts here, but I've got fifty pages here and I can get you the rest." Shortly after that conversation I go into the courtroom and ask the judge to grant a continuance which he does. Then he calls my next case and, despite my best efforts, refuses to give my client a continuance so that my client can get his fines paid. He points out that my client has had 5 or 6 continuances already over a 7 month period and there have been no payments made at all. I show him medical records from my client showing that he had congestive heart failure about six months ago and has only been back to work recently. The judge isn't having any of it. With my client almost crying next to me (in fake "whispers": tell him this - tell him that - what'll I do?), the judge sentences him to 30 days in jail but agrees that he can do the time on weekends if I can find a jail which will take him and sets his date to report off for a week.
In the afternoon I sit in my office waiting for clients to come in and two actually do. It's a miracle two clients have shown up two weeks in a row. Of course, the federal client came from 4 counties on the other side of Richmond so I spent the better part of a hour on the phone trying to get him to my office. Oh well, at least I know the feds will pay me for all my work.
Addendum: Matt comments on this post here: Stop the Bleating!
25 January 2004
Riding a Pale Horse
Rather than doing the list of interesting cases involving murder and the death penalty here I have started a supplementary blawg DeathLaw.
Justice Antonin Scalia cannot imagine why anyone prepared to plead guilty in court should have to be advised that it would be wise to talk first to a lawyer.
"We want to encourage people to confess," he said during oral arguments last week. "Why do we want to encourage them to hire a lawyer so they will get off on an irrelevancy?"
Another sign that the Justices have little real world experience - particularly no significant real experience in the actual working of our justice system on the street and in the trial courts.
"We want to encourage people to confess," he said during oral arguments last week. "Why do we want to encourage them to hire a lawyer so they will get off on an irrelevancy?"
Another sign that the Justices have little real world experience - particularly no significant real experience in the actual working of our justice system on the street and in the trial courts.
Uber-technicality in California:
In Los Angeles the Public Defender's office is challenging every single misdemeanor charge in the city. The reason for the challenges is not because people might be innocent or subject to some massive due process violation; it's because the City Attorney may not have been technically qualifed to be elected to his post. Again, there is no allegation that this has effected the bringing of and/or prosecution of misdemeanors.
Even in California no judge is biting on this red herring.
Why do you do this? It can only make your office look foolish in front of the judges and engender hostility with the attorneys you must negotiate deals with each day. And you cannot actually think that you are going to win. Well, it is California . . .
From Southern California Law Blog.
In Los Angeles the Public Defender's office is challenging every single misdemeanor charge in the city. The reason for the challenges is not because people might be innocent or subject to some massive due process violation; it's because the City Attorney may not have been technically qualifed to be elected to his post. Again, there is no allegation that this has effected the bringing of and/or prosecution of misdemeanors.
Even in California no judge is biting on this red herring.
Why do you do this? It can only make your office look foolish in front of the judges and engender hostility with the attorneys you must negotiate deals with each day. And you cannot actually think that you are going to win. Well, it is California . . .
From Southern California Law Blog.
Albemarle County Sheriff Edgar S. Robb must be congratulated for taking the proper stance in who should be chairing regional jail boards. Personally, if I were an elected official I don't know if I'd want the responsibility. But it is the right thing to do.
Regional jails are easy dumping grounds for prisoners who are trouble makers or who have serious (expensive and/or life threatening) medical problems. Once that prisoner is out of the Sheriff's local jail there is no elected official in the loop. So if Dr. Smith at the regional jail, in trying to weed out malingerers from those who actually need meds and with an eye toward his meager budget, withholds necessary medicine from a number of patients who are in serious need of it the local newspaper isn't going to be able to do an expose that points at the sheriff.
By standing up and saying that elected officials should be the ones who take responsiblity for the prisoners who have been placed in their care Sheriff Robb has shown himself to be a class act. A shame he's not in a county where I can vote for him.
Regional jails are easy dumping grounds for prisoners who are trouble makers or who have serious (expensive and/or life threatening) medical problems. Once that prisoner is out of the Sheriff's local jail there is no elected official in the loop. So if Dr. Smith at the regional jail, in trying to weed out malingerers from those who actually need meds and with an eye toward his meager budget, withholds necessary medicine from a number of patients who are in serious need of it the local newspaper isn't going to be able to do an expose that points at the sheriff.
By standing up and saying that elected officials should be the ones who take responsiblity for the prisoners who have been placed in their care Sheriff Robb has shown himself to be a class act. A shame he's not in a county where I can vote for him.
I don't care how much you are provoked you gotta know that the wrath of God is going to come down on you if you burn a cross in someone's yard. How stupid can you be?
I'm not a fan of prosecutors having the ability to appeal results they don't think are severe enough. And I think a year was probably too severe (especially considering the other perpetrator was getting no time). Still, you have to wonder what the judge was thinking. The guy should have seen the inside of a cell for at least a week or two.
Another question which comes to mind is why were the feds were dealing with something this petty? Don't tell me that local law enforcement couldn't have dealt with these Huckleberries.
I'm not a fan of prosecutors having the ability to appeal results they don't think are severe enough. And I think a year was probably too severe (especially considering the other perpetrator was getting no time). Still, you have to wonder what the judge was thinking. The guy should have seen the inside of a cell for at least a week or two.
Another question which comes to mind is why were the feds were dealing with something this petty? Don't tell me that local law enforcement couldn't have dealt with these Huckleberries.
The Klan and Masks:
Okay, let me begin this by stating that I am one of "those people" whom the Klan despises (a "Romanist"). And I ain't got no use fer them either.
Still, this rationale for denying them the use of masks is disturbing:
Yeah, I know it's a stretch but a precedent like that is always disturbing because it clearly restricts how a person might choose to express himself.
And no matter how hard the article tries to make a bunch of numbskulls walking down the street in masks the equivalent of yelling "Fire" in a theater it just isn't the same thing. Decisions like this - whether they rely on a "redundancy" argument or a "yelling fire" argument - are just ways of sticking it to a disfavored group. And the laws and decisions aimed at the disfavored group won't just dry up and blow away as time passes. After all, how much damage is still being done by the Blaine Amendment provisions which were put into numerous States' constitutions?
Okay, let me begin this by stating that I am one of "those people" whom the Klan despises (a "Romanist"). And I ain't got no use fer them either.
Still, this rationale for denying them the use of masks is disturbing:
The three-judge federal panel said the mask was not protected because it does not convey a message independently of the KKK's robe and hood.I find that rationale more than a little disturbing. It's the equivalent of stating: "Mr. Lammers had a 6" St. Benedict crucifix hanging around his neck and a jacket with a large K of C 3d degree symbol on it. This clearly identifies him as a Roman Catholic. Therefore, we can restrict him from wearing a monstrance pin because it is redundant."
. . .
"Since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and hood do not," the appeals court said. "The expressive force of the mask is, therefore, redundant."
Yeah, I know it's a stretch but a precedent like that is always disturbing because it clearly restricts how a person might choose to express himself.
And no matter how hard the article tries to make a bunch of numbskulls walking down the street in masks the equivalent of yelling "Fire" in a theater it just isn't the same thing. Decisions like this - whether they rely on a "redundancy" argument or a "yelling fire" argument - are just ways of sticking it to a disfavored group. And the laws and decisions aimed at the disfavored group won't just dry up and blow away as time passes. After all, how much damage is still being done by the Blaine Amendment provisions which were put into numerous States' constitutions?
24 January 2004
It's a proud week in the history of Louisa County, Virginia:
Louisa County sheriff’s deputies arrested [Police] Chief John Wilson around 4:30 p.m. after Sgt. Robert Franklin Rigsby filed a criminal complaint against him Wednesday. Rigsby alleges that the chief struck him in the groin Dec. 31 following a scheduling dispute.
When Wilson appeared before the magistrate Thursday, he filed an identical charge against Rigsby, who was then arrested at 6:15 p.m.
A judge trying to explain why it was okay for him to force someone to go to yoga classes for a year.
By popular demand the return of the most popular Blanton's Masthead.
BTW, if I haven't made this clear before, Explorer drives me nuts. Every single time I work on the format of this site I get it to work with Opera, Netscape, and Mozilla fairly quickly. And then I spend forever trying to get it to work with Explorer. AAAaarrrgggg!!!
BTW, if I haven't made this clear before, Explorer drives me nuts. Every single time I work on the format of this site I get it to work with Opera, Netscape, and Mozilla fairly quickly. And then I spend forever trying to get it to work with Explorer. AAAaarrrgggg!!!
"[A] woman was excused from jury service, then looked across the room at [Martha] Stewart before and blurted, 'I am a huge fan of yours. Good luck.'"
And for some reason this worried the prosecutor. ;-)
Actually, if I were the prosecutor I'd be more worried about the stealth juror who says to herself "Martha shouldn't be here and I'm going to say whatever I have to in order to make sure I'm on the jury so she can't be convicted."
And for some reason this worried the prosecutor. ;-)
Actually, if I were the prosecutor I'd be more worried about the stealth juror who says to herself "Martha shouldn't be here and I'm going to say whatever I have to in order to make sure I'm on the jury so she can't be convicted."
23 January 2004
In reference to my former post on Hilliard v. Commonwealth a reader asks:
Of course, even if the Defendant makes the unequivocal assertion the police can come back later and try again and again and again - as long as they stop each time when the Defendant unequivocally asserts his rights. I've only had one officer do that to a client of mine but they can do it (at least as long as they don't try to question the Defendant about specific charges for which he has counsel assigned).
I'm curious if you have any advice for your blog readers on the correct way to request a lawyer during an interview. If "I would like a lawyer here so I don't get in trouble" doesn't count as a request for council being present during interrogations, what does? Is there a catch phrase that must be repeated a certain way? Do you have to click your heels together three times as you say it?Well, I tell my clients that they have to say exactly this phrase: "I will not talk to you without my attorney, Mr. Lammers." Anything less will be deflected by the officer: "Can't I have my attorney here?" Officer: "Sure you can but I just want to ask you a couple of questions. First . . ." While reasonable people would realize this is an attempt to ask for an attorney that's not the standard. The standard is that the Defendant must have made an undeniable assertion of his rights. If there least little equivocality Virginia courts will not recognize the assertion.
Of course, even if the Defendant makes the unequivocal assertion the police can come back later and try again and again and again - as long as they stop each time when the Defendant unequivocally asserts his rights. I've only had one officer do that to a client of mine but they can do it (at least as long as they don't try to question the Defendant about specific charges for which he has counsel assigned).
It looks like there may be a new federal courthouse built in Richmond, Virginia. It's probably a good idea. The old courthouse is spread out between two buildings with the courtrooms scattered throughout different floors in both buildings separated by various chambers and other offices. The building is definitely old and - while probably adequate at the time originally constructed - now has more business than it really has the capacity to adequately deal with. It still works because of the paucity of cases which are handled in the federal court. If a heavy docket ever hit that courthouse it would be a nightmare. Hopefully the new courthouse will have a better design with Magistrates all on one floor, District Courts on the next, etc.
In California they have peremptory strikes for judges? Gotta wonder how that works out. If you drop judge Smith two or three times he might not be very favorable to you if you are ever put in a position where you must try a case in front of him.
Found Around the Blawgoshpere:
(1) The Curmudgeonly Clerk is having an indepth discussion about statutory rape.
(2) The Legal Reader notes yet another case where anti-terrorism laws are being used against common criminals. Who didn't see that coming?
(1) The Curmudgeonly Clerk is having an indepth discussion about statutory rape.
(2) The Legal Reader notes yet another case where anti-terrorism laws are being used against common criminals. Who didn't see that coming?
22 January 2004
Thank goodness my high school was not a warzone which required armed police presence. Another reason why people who can leave Richmond do so when they have kids (or send them to private school).
The Jury:
Barbados is taking steps to strengthen the jury system while New Zealand will probably take two steps clearly meant to weaken it (having come to the conclusion that they can't trust some of the citizens all the time and all the citizens some of the time). You know, it's disturbing that a 13% hung jury rate would be attributed to a problem with the jury rather than (just perhaps) the prosecution not being able to prove its case adequately.
Barbados is taking steps to strengthen the jury system while New Zealand will probably take two steps clearly meant to weaken it (having come to the conclusion that they can't trust some of the citizens all the time and all the citizens some of the time). You know, it's disturbing that a 13% hung jury rate would be attributed to a problem with the jury rather than (just perhaps) the prosecution not being able to prove its case adequately.
Remember a few days ago when I posted about how tacky it was that California localities were lobbying for the Scott Peterson trial? Courtesy of John D., here is an e-mail he received when he inquired (I include the entire letter so that I cannot be said to have skewed it):
I am sending you the email I sent to our members which I hope clarifies things. We were appalled at the impression created, as you were . (pasting below) Believe me, the impression created by the articles and edited news clips are far from the truth.
As you are all seeing/reading, the Peterson trial story has taken on a life of its own and many articles are continuing to say we "lobbied" for the trial and are excited about the opportunity of a trial generated by a terrible crime. Here are some facts for you:
We NEVER lobbied for the trial, and as Sheriff Horsley has said, you CAN'T lobby for a trial. What we DID do is send a professional note to the judge as soon as it was announced that we were a possible venue, saying that IF we were chosen, we would be happy to assist the media. We did NOT include promotional materials, nor did we attempt to "sell" the county or compete.
In terms of our reaction to the event, I have made a point in conversations w/reporters to say that our whole county mourns Laci Peterson and her son and that the crime was awful. (As a mother myself, the crime horrified me and not a day goes by I don't think about Laci's family.)
Unfortunately, we can't change what happened--the trial already exists--and it had to go somewhere. While we were stunned with the announcement of the move to our county, we are in the hospitality industry and no matter what brings people here--good news or bad--it is our job to take care of them.
Our area and hospitality industry can use a shot in the arm after the tough times following 9/11 and the dotcom downturn. If we were/are excited, it's because filling our hotels again can put people back to work, pave our streets, pay for police and fire and on and on. You all live here and you know how tough things have been.
This means no disrespect to the victim or her family and I am sorry if anyone interpreted it that way. We are in tough times.
In most conversations, the media have asked for an economic impact (anywhere from six to 16 million dollars) and then said, "wow, so what is your group's reaction to that?" Needless to say, it is great excitement. Our county has been suffering greatly.
We have a lot of stories to tell about this county and having the media here presents a definite opportunity for exposure. It goes without saying that the reason they are here is unfortunate.
We have told the press that we know the county has concerns about the costs, BUT that county officials are willing to step up to the plate as are we--and that we will work together as a team and bend over backward to help them in any way.
Having said all of this, we want the world to know we are a hospitable community. I urge everyone to keep prices down during the trial, so we are generous as we step up to the plate with the rest of the county . >From what I'm hearing so far, this is exactly what you are doing.
Thank you!
ne LeClair, CAE
President & CEO
San Mateo County Convention & Visitors Bureau
The problem is that the underlined paragraph (my emphasis) would seem to be belied by the direct quote from Ms. LeClair found in the original article. And, yes, you can lobby for a trial. It may be a dumb thing to do (or looking at that letter, desperate) and it should be entirely ineffective. Nevertheless, you can lobby.
---------------
I am sending you the email I sent to our members which I hope clarifies things. We were appalled at the impression created, as you were . (pasting below) Believe me, the impression created by the articles and edited news clips are far from the truth.
As you are all seeing/reading, the Peterson trial story has taken on a life of its own and many articles are continuing to say we "lobbied" for the trial and are excited about the opportunity of a trial generated by a terrible crime. Here are some facts for you:
We NEVER lobbied for the trial, and as Sheriff Horsley has said, you CAN'T lobby for a trial. What we DID do is send a professional note to the judge as soon as it was announced that we were a possible venue, saying that IF we were chosen, we would be happy to assist the media. We did NOT include promotional materials, nor did we attempt to "sell" the county or compete.
In terms of our reaction to the event, I have made a point in conversations w/reporters to say that our whole county mourns Laci Peterson and her son and that the crime was awful. (As a mother myself, the crime horrified me and not a day goes by I don't think about Laci's family.)
Unfortunately, we can't change what happened--the trial already exists--and it had to go somewhere. While we were stunned with the announcement of the move to our county, we are in the hospitality industry and no matter what brings people here--good news or bad--it is our job to take care of them.
Our area and hospitality industry can use a shot in the arm after the tough times following 9/11 and the dotcom downturn. If we were/are excited, it's because filling our hotels again can put people back to work, pave our streets, pay for police and fire and on and on. You all live here and you know how tough things have been.
This means no disrespect to the victim or her family and I am sorry if anyone interpreted it that way. We are in tough times.
In most conversations, the media have asked for an economic impact (anywhere from six to 16 million dollars) and then said, "wow, so what is your group's reaction to that?" Needless to say, it is great excitement. Our county has been suffering greatly.
We have a lot of stories to tell about this county and having the media here presents a definite opportunity for exposure. It goes without saying that the reason they are here is unfortunate.
We have told the press that we know the county has concerns about the costs, BUT that county officials are willing to step up to the plate as are we--and that we will work together as a team and bend over backward to help them in any way.
Having said all of this, we want the world to know we are a hospitable community. I urge everyone to keep prices down during the trial, so we are generous as we step up to the plate with the rest of the county . >From what I'm hearing so far, this is exactly what you are doing.
Thank you!
ne LeClair, CAE
President & CEO
San Mateo County Convention & Visitors Bureau
---------------
The problem is that the underlined paragraph (my emphasis) would seem to be belied by the direct quote from Ms. LeClair found in the original article. And, yes, you can lobby for a trial. It may be a dumb thing to do (or looking at that letter, desperate) and it should be entirely ineffective. Nevertheless, you can lobby.
20 January 2004
"We nevertheless reiterate that violations of state procedural statutes are viewed by the courts with disfavor."
However, we will strongly encourage such actions by finding that even though the police acted illegally in arresting a Defendant in a city where they clearly had no jurisdiction it is not grounds for supressing evidence gained through the arrest because it is only illegal - not unconstitutional.
Commonwealth v. Coleman
A Chesterfield County case.
However, we will strongly encourage such actions by finding that even though the police acted illegally in arresting a Defendant in a city where they clearly had no jurisdiction it is not grounds for supressing evidence gained through the arrest because it is only illegal - not unconstitutional.
Commonwealth v. Coleman
A Chesterfield County case.
"Can I have somebody else present too, I mean just for my safety, like a lawyer, like y'all just said, or something?" isn't an invocation of your right to counsel.
Hilliard v. Commonwealth
Hilliard v. Commonwealth
A prosecution appeal denied on a hyper-technicality. The petition was mailed on the right day but not in the correct manner.
Commonwealth v. Green
Yipes! The decision is correct - now my whining about how courts always find in the prosecution's favor may have to be curtailed a little bit. Naw - what's the fun in that? Anyway, it's only one case out of how many?
Commonwealth v. Green
Yipes! The decision is correct - now my whining about how courts always find in the prosecution's favor may have to be curtailed a little bit. Naw - what's the fun in that? Anyway, it's only one case out of how many?
Police, acting on an unreliable informant, assault a car with guns drawn. A judge in Chesterfield County (a very, very conservative county1) finds this unconstitutional. The prosecutor appeals this to the Virginia Court of Appeals.
Ignoring the basic rule of appellate law that the appellate court must interpret the facts in the favor of the party prevailing below (or at least not adopt facts which the trial judge had to reject to rule as he did) the appellate court finds that despite the fact that the informant was not proven reliable and despite the fact that police without probable cause rushed a car with guns drawn, pulled the occupants out of the car, put them down on the ground and cuffed them (clearly unconstitutional) the evidence which came from the subsequent search of the car shall not be excluded.
Huh? How, you ask, did they get there? Entirely adopting the prosecution's interpretation of the facts, they made findings of FACT which were not made by the trial judge (clearly outside their purview). Then they say "So what if the arrest is unconstitutional? According to the facts, as we determine them, we don't care that it's illegal/unconstitutional because the officers would have had reasonable articulable suspicion and conducted a constitutional search of the car anyway."
Remember the discussion of whether 4th Amendment rights still exist if you drive your car and/or how a court will twist the law in order make certain evidence which should be suppressed will be introduced to make sure the guilty Defendant goes to prison? Well, here's the Defense attorney's nightmare: Commonwealth v. Fraierson.
1 A standing joke as to suppressed evidence cases coming out of Chesterfield is that the fact a Chesterfield judge found the evidence unconstitutional should, of itself, be a dispositive argument in the appellate courts. It's always interesting reading appellate treatment of Chesterfield cases because the trial judges are good at what they do and when they exclude evidence it is not often in a gray zone; it's clearly over the line. And the trial judges are well versed in 4th Amendment decisions because the Street Drugs unit in Chesterfield is extremely proactive and will push as far as the courts will allow it (and maybe just a little bit further). So the appellate courts really have to stretch to come in with pro-prosecution decisions.
Ignoring the basic rule of appellate law that the appellate court must interpret the facts in the favor of the party prevailing below (or at least not adopt facts which the trial judge had to reject to rule as he did) the appellate court finds that despite the fact that the informant was not proven reliable and despite the fact that police without probable cause rushed a car with guns drawn, pulled the occupants out of the car, put them down on the ground and cuffed them (clearly unconstitutional) the evidence which came from the subsequent search of the car shall not be excluded.
Huh? How, you ask, did they get there? Entirely adopting the prosecution's interpretation of the facts, they made findings of FACT which were not made by the trial judge (clearly outside their purview). Then they say "So what if the arrest is unconstitutional? According to the facts, as we determine them, we don't care that it's illegal/unconstitutional because the officers would have had reasonable articulable suspicion and conducted a constitutional search of the car anyway."
Remember the discussion of whether 4th Amendment rights still exist if you drive your car and/or how a court will twist the law in order make certain evidence which should be suppressed will be introduced to make sure the guilty Defendant goes to prison? Well, here's the Defense attorney's nightmare: Commonwealth v. Fraierson.
1 A standing joke as to suppressed evidence cases coming out of Chesterfield is that the fact a Chesterfield judge found the evidence unconstitutional should, of itself, be a dispositive argument in the appellate courts. It's always interesting reading appellate treatment of Chesterfield cases because the trial judges are good at what they do and when they exclude evidence it is not often in a gray zone; it's clearly over the line. And the trial judges are well versed in 4th Amendment decisions because the Street Drugs unit in Chesterfield is extremely proactive and will push as far as the courts will allow it (and maybe just a little bit further). So the appellate courts really have to stretch to come in with pro-prosecution decisions.
The feds have indicted a bunch of people in NY for having names that end in vowels. Or some reason like that . . .
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