I'm sure there are ways to defend the PATRIOT Act - this is not one of them:

[I]s [it] the fact that the FBI can search secretly that troubles the Times? If so, consider: How long would evidence – anthrax or rincin, for instance -- remain on a terrorist's premises if FBI agents were obligated to phone ahead to say they were dropping by with a search warrant?

OMG, what a strawman. Ladies and Gentlemen, I guarantee you that agents have never, ever called ahead and informed anyone that they are coming with a search warrant.

Update: In the $1.5 million dollar cat-scratch trial (discussed previously here), the jury rejects the case. The plaintiff is not happy:

"After that first juror (in jury selection) said the word 'frivolous,' and so did the next five, I thought the whole panel should have been thrown out. I truly think the well got poisoned right there."

New Posts over at JuryLaw.

As with DeathLaw, postings will be more sporadic in this sub-blog and I will post notices here when they are up.

Suing for $1.5 million because the cat the librarians kept as a pet scratched an assistance dog.

$1.5 million? Okay, let's assume that the cat totally disabled the dog (not the normal result in the confrontations I've seen between cats and dogs). Let's assume your preferred breed of assistance dog is the rarest of breeds and the puppies cost $10,000 apiece. Let's assume that the breed is dumb and stubborn and takes two years to train with it's own full-time, personalized trainer at $75,000 a year. $1.5 million?

So what's that leave? Pain and suffering for the owner? If you're psyche is so frail that you cannot understand and deal with the fact that cats and dogs sometimes get into confrontations maybe you shouldn't go out into the world. There are cats all over out there.

And does anybody believe the cat started this? That runs contrary to most people's experiences. The only time I have seen my cats aggress against my dogs was when the female had her first litter. For the first month or so I think she would have attacked a black bear if it was stupid enough to get near that kitten.

Ashcroft tries to bluff back Senators who are trying to fix the PATRIOT Act.

Here's a nice bit of hyperbole: By returning the law to its former state (and in some cases only moving it closer to its former state) "Ashcroft . . . said the legislation would "make it even more difficult to mount an effective anti-terror campaign than it was before the Patriot Act was passed."

The sky is falling! The sky is falling!

An article urging the feds to resume testing people for drugs as they are arrested.

Overpundit expresses concern that Thornton v. United States will result in a ruling which allows police to search any car wherein a person whom they have arrested was recently.

I agree with his sentiment and hope that the federal supreme court stops the insidious practice of allowing officers to search a car after a suspect has exited - when it is clearly not done in an effort to keep the officer from the car. This has been the law of the Commonwealth of Virginia since Glasco v. Commonwealth, 257 Va.433 (1999)(very similar facts to Thornton). Nowadays, if officers develop probable cause in your client's case the client had best not have even thought of being anywhere near his car or they're going in.

As I've stated before, I no longer believe that you have rights if you decide to drive a car. I'll keep fighting the rearguard action but the battle here is lost and the wasteland it has left behind is desolate.


And I state yet again, lest I get nastygrams, I do not blame the officers for this. The rules are laid out by the courts and legislatures. Most officers follow the rules and the responsibility for their actions lies at the feet of those who allow them.

The Legal Reader points to more blowback over the misuse of the PATRIOT Act.

TalkLeft points to a judge who believes that the Congress is trying to bully him into sentencing harshly and is now filming his sentencing hearings because he thinks the appellate court needs to see the hearings. He apparently is taking the position that when the appellate court agrees with the prosecution that the trial judge has not sentenced harshly enough it is resentencing the Defendant and needs to see the actual hearing.

It's interesting but I have to wonder whether the appellate court will actually view the tapes or if it will only read the briefs and listen to oral argument. If the Defense gets a copy I guess it could try citing to date-time stamps on the tape to force the appellate court to view the film.

Howard Bashman (How Appealing) is opening his own appellate law firm.

Good Luck.

Bryan Gates (I respectfully dissent) points to a case where a Doctor stared into the face of the Captain heading the local narcotics detail and told him to go jump off a bridge (after he had threatened to arrest her for refusing to do an internal search).

Over at The Curmudgeonly Clerk there has been some discussion of this post.

Actually, at first I took "unable to verify" as an admission that the dog had previously alerted when there were no drugs found. The officer understood the question, she just wasn't going to admit straight up that her dog makes errors. However, to state what I believe the officer's final position was (after 2-3 pages of transcript which I was too lazy to type in completely): when her dog alerted there might not be drugs present at that time but there was residue from prior presence which precluded the confirmation of drugs. Thus the dog does not fail; humans fail in not being able to confirm the presence currently or in the past. Police learn to make statements like this because they are too often rewarded for them by the courts who are looking for any reason not to suppress evidence. So the Clerk is dead on in his analysis.

Dedman suggests that perhaps people should be more careful of how their statements might be read once they are transcribed. That's a mighty high standard during the give and take of a trial. People just aren't thinking about the transcript during a trial. Here, the officer was trying her best to spin things her way to win with the trial judge and I was doing my best to make it obvious that she and her partner had violated the Fourth Amendment by searching my client's truck after the client had been judged not to have drugs, the dog had not alerted on the truck, and the dog had alerted on the passenger but upon a search of his person no drugs were found. The judge stopped us during argument, ordered a transcript and required us to brief the matter.<sup>1



1</sup> In Va. State trial courts my suppression motion usually doesn't say much more than "They violated Client's 4th Amendment rights." This is because no more is required and the prosecutor is not required to answer my motion. I have offered more than once to pre-brief my motions if the Assistant Commonwealth Attorney on the other side will file a reply brief and not use any paralegals or interns to write the brief or research the matter (in at least one jurisdiction where I practice briefs seem to be written by the law student interns and the prosecutor, like as not, may come in arguing something entirely different than what is in the brief). No prosecutor has accepted this when I offered it.

Difficult to fence it is. Easily traced is it.

Okay, so you steal a Yoda statue. What are you going to do with it?

Joshua Claybourn provides A tale of 2 probationers.

Sadly, while I hope that the second person was truly reformed (and Joshua was clearly in a better position to judge then I am), this looks to me like two different ways of scamming the system. I think that few actually do the in-your-face thing. Far more likely is the second approach: I've found God. It's the biggest scam in the prison system. I'd say that perhaps 40% of my clients go to religion classes while they are in jail. Partly it's because they are bored and there is nothing else to do, partly it's because they can get certificates of attendance or letters from the person running the class to use in their sentencing hearing (or motion to reduce sentence), and sometimes there is genuine interest (one can hope). However, over time I've noticed that clients who know they are going away for 15 years, or who are on their 9th felony and know that judge Smith is going to give them two years no matter what they do, don't bother. Or at least if they are going they don't tell me.

Now, my perspective is different from Joshua's. I seldom see, and don't long remember, people who had one brush with the law and reformed. I see the recidivists - the people who find jail / prison unpleasant but are not deterred by its threat. It is my most sincere hope that some find their faith and move on to a better life. It's just that I live and work in a cynical world where religiosity is another pawn in the game. And we all recognize this. Arguing that "my client has found God" is seldom an effective argument during sentencing hearings or motions to reduce sentence because everyone in the courtroom has heard it so many times with people whom we all know that we will see back in the system within a year or two of sentence completion.

Thanks to Joshua for pointing me to a thought provoking post.

Dominus Vobiscum

I'm really starting to enjoy a couple of newer sites - Overpundit and legal fiction. I commend both to you.

Addendum: NO, I haven't turned into a bleeding-heart Liberal because I linked to someone who actually has the ACS linked on his site. I often disagree with the author (my philosophy is probably closer to feddie at Southern Appeal) but that doesn't mean the site is not worth a read. It's well reasoned and well written and has the potential to become a significant site in the blawgosphere.

Confusion and dissension in the federal ranks after a terrorism conviction.

Crime in the Victorian era:

Equally annoying, though perhaps not so ultimately dangerous, is the sham railway porter or messenger. This variety of the predatory race is in the habit of watching the master or mistress clear from the house, and then calls with a bogus parcel, for the carriage of which, and sornetimes for the parcel itself, he, demands such sums of money as lie thinks most likely to be paid without question. In no case should a parcel be taken in under these circumstances. Another well-known parcel dodge is to watch the delverey by some draper's cart of a parcel, and ten minutes afterwards to call and redemand it, on the plea of some mistake having occurred in the delivery.

If you advertise your prostitutes in a two page Yellow Pages ad the police might catch on eventually.

Virginia is moving toward a clergy snitch rule. It excludes the confessional but is still somewhat worrisome. What happens if a priest suspects something but before he can report anything the perpetrator goes to confession? Or what if someone tells the priest during confession and the priest notices indicators afterward?

And the $64,000 question: can the exclusion of evidence acquired during the sacrament of confession be found to be a violation of the constitution because it favors those denominations with such a private sacrament over faiths which have none (or worse require open confession in front of the congregation)?

Prosecutors in Colorado are subject to term limits.

From a transcript of a case for which I am writing a brief:

[About a drug sniffing dog]

Me: Do you know how often your dog gives false positives?

Officer: He doesn't give false positives. We're just unable to verify the alerts at that time.

????????????????????????????????????????

A very unhappy Defendant.

Validation!!

Hey! When did these guys come in and check out my apartment?

Leaving a gun where it could be found by a child - who then kills himself with it - is not felony child abuse.

For what it's worth, I think that is correct and Judge William Broadhurst is to be commended for making the tough call. Not many people are made happy when you follow the law rather than the instinct to punish, even when it's an accident.

The Justice Department has stopped testing newly arrested Defendants for drugs because of budget constraints.

This just in: Foxes deny that anything has gone wrong while they have been guarding the henhouse.

The Justice Department investigated itself and determined that it had not violated anyone's civil liberties through the PATRIOT Act. Of course, since it's Justice's position that the PATRIOT Act doesn't violate the rights of citizens it would seem to be a pretty circular conclusion.

Opening statments in the Martha Stewart case.

If you try to escape from jail you should probably make sure you can fit through the window first.

New post at DeathLaw

Fellers v. United States

The Supreme court reverses the lower courts by ruling that questioning before Miranda violates 6th Amendment but remands to the Circuit Court for a decision as to whether that means the post-Miranda confession must be supressed.

The Court of Appeals erred in holding that the absence of an "interrogation" foreclosed petitioner's claim that the jailhouse statements should have been suppressed as fruits of the statements taken from petitioner at his home. First, there is no question that the officers in this case "deliberately elicited" information from petitioner. Indeed, the officers, upon arriving at petitioner's house, informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators. 285 F. 3d, at 723; App. 112. Because the ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of petitioner's Sixth Amendment rights, the Court of Appeals erred in holding that the officers' actions did not violate the Sixth Amendment standards established in Massiah, supra, and its progeny.

Second, because of its erroneous determination that petitioner was not questioned in violation of Sixth Amendment standards, the Court of Appeals improperly conducted its "fruits" analysis under the Fifth Amendment. Specifically, it applied Elstad, supra, to hold that the admissibility of the jailhouse statements turns solely on whether the statements were " 'knowingly and voluntarily made.' " 285 F. 3d, at 724 (quoting Elstad, supra, at 309). The Court of Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner's jailhouse statements on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard. We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue in the first instance.

It's an interesting opinion but doesn't appear all that useful without an answer to the second question. You have to wonder if the appellate court will take the hint.