14 January 2005
Lubbock Undercover Officer Trial
The undercover officer who sent a lot of people to jail and had a judge stop a case and say that he "is simply not a credible witness under oath" has been convicted.
Court Rules Virginians Can Have Sex
For all of you who were terrified that everyone you know was going to be arrested for having sex outside of marriage - Fear No More. The Virginia Supreme Court has ruled that extra-marital sex is constitutional.
13 January 2005
Give the Client the Presentence Report
My whole post about not being able to give clients the presentence report may soon be moot. SB 910, introduced by Republican Senator Thomas K. Norment, Jr. would allow defendants to have a copy of the presentence report.
Vital Changes to Virginia Law
Becky Dale points me to this editorial in the Washington Post about some serious remedies offered this year for the failings in Virginia's law. The first paragraph is over the top but the second and third address a couple of changes which are needed in the Virginia judicial system.
(1) The first addresses the problem of the very strict enforcement of formality in Virginia's appellate process. It is unseemly to deny appeals because of an error in either the form of the petition or the formality of the petition process. It is the favoring of form over function evidencing a policy which favors dismissal of petitions without considering the merit of the legal argument.
On the other hand, there is the necessity of some sort of formality in order to keep the system operational (i.e. a petition for a direct appeal probably shouldn't be allowed 13 years after the case has ended). With that in mind I would have favored some sort of exception to Rules 5A:18 and 5:25 added as a second paragraph:
The current proposal (HB 2628) is a good try but has some issues:
(2) There are actually two bills which propose raising indigent fees. The first is HB 1516 with this pertinent language:
I have previously posted about this issue in these posts:
How the Current System Works
Evil Court Appointed Attorneys
How to Keep Your Office Afloat Doing Court Appointed Work
Fixing the System
A Report
(1) The first addresses the problem of the very strict enforcement of formality in Virginia's appellate process. It is unseemly to deny appeals because of an error in either the form of the petition or the formality of the petition process. It is the favoring of form over function evidencing a policy which favors dismissal of petitions without considering the merit of the legal argument.
On the other hand, there is the necessity of some sort of formality in order to keep the system operational (i.e. a petition for a direct appeal probably shouldn't be allowed 13 years after the case has ended). With that in mind I would have favored some sort of exception to Rules 5A:18 and 5:25 added as a second paragraph:
If there is an error in the filing of an appeal the opposing party may allege that such error is prejudicial and argue this as part of its brief. The prejudice must be clear and convincing for the court to deny an appeal on that basis. A filing received by the court 10 days after the date it was due is subject to a rebuttable presumption that it a prejudicial error.Even better, with some minor alterations this could be made a full blown statute.
The current proposal (HB 2628) is a good try but has some issues:
§ 8.01-654.3. Illegality of detention; failure to file appeal.The main problem is that it is another habeas procedure. Inmates are not entitled to court appointed counsel on a habeas. I am ethically forbidden to undertake this action because it is an action against my failure and I have a conflict of interest. It is a difficult situation. While I have no doubt that it is meant to alleviate the situation I do have doubts as to its efficacy. Unfortunately, it is the only one offered this session. If you have the ear of a Virginia legislator I urge you to get him to consider something along the lines of what I propose above.
A. If the petitioner alleges as a ground for the illegality of his detention the failure of his attorney to timely file an appeal, he shall file with the circuit court a petition stating all allegations of fact relating to that attorney error.
1. The circuit court shall conduct a hearing on the petition within 60 days of filing and shall report its finding within 60 days of the hearing to the petitioner and the Court of Appeals.
2. If the circuit court finds by a preponderance of the evidence that the default (i) occurred due to attorney error, (ii) did not result from the petitioner's failure to exercise due diligence, and (iii) denied petitioner an opportunity to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, grant the party leave to appeal. The computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.
3. The filing of a petition pursuant to this section shall toll the time limitation for filing a habeas petition contained in subdivision A 2 of § 8.01-654.
a. If the circuit court grants leave to appeal pursuant to subdivision 2, the time limitation in subdivision A 2 of § 8.01-654 shall begin to run as of the date of the circuit court's final order relating to the appeal.
b. If the circuit court denies leave to appeal pursuant to subdivision 2, the time limitation in subdivision A 2 of § 8.01-654 shall begin to run as of the date of the circuit court's order of denial.
B. Any habeas petition filed subsequent to the denial or conclusion of an appeal pursuant to this section shall conform with all applicable requirements of § 8.01-654.
(2) There are actually two bills which propose raising indigent fees. The first is HB 1516 with this pertinent language:
1. In a district court, a sum not to exceed $The other is HB 1596 with this pertinent language:120150 or such other amount as may be provided by law; such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under § 19.2-306, without a requirement for accounting of time devoted thereto; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;
2. In a circuit court (i) to defend a felony charge that may be punishable by death an amount deemed reasonable by the court; (ii) to defend a felony charge that may be punishable by confinement in the state correctional facility for a period of more than twenty years, or a charge of violation of probation for such offense, a sum not to exceed $1,2351,600; (iii) to defend any other felony charge, or a charge of violation of probation for such offense, a sum not to exceed $445550; and (iv) to defend any misdemeanor charge punishable by confinement in jail or a charge of violation of probation for such offense, a sum not to exceed $158200.
1. In a district court, a sum not to exceed $The worrisome part of the second bill is that it requires the increase to be funded. The General Assembly hasn't even fully funded the pay it has currently authorized (for instance a misdemeanor is officially authorized $120 but only actually pays $112). We can only hope they would fund the new changes.120180 or such other amount as may be provided by law; such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under § 19.2-306, without a requirement for accounting of time devoted thereto; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;
2. In a circuit court (i) to defend a felony charge that may be punishable by death an amount deemed reasonable by the court; (ii) to defend a felony charge that may be punishable by confinement in the state correctional facility for a period of more than twenty 20 years, or a charge of violation of probation for such offense, a sum not to exceed $1,2351,853; (iii) to defend any other felony charge, or a charge of violation of probation for such offense, a sum not to exceed $445668; and (iv) to defend any misdemeanor charge punishable by confinement in jail or a charge of violation of probation for such offense, a sum not to exceed $158237.
. . . .
[T]he provisions of this act shall become effective only if sufficient funds are appropriated by the 2005 General Assembly to fund the increase in court-appointed compensation affected by this act.
I have previously posted about this issue in these posts:
How the Current System Works
Evil Court Appointed Attorneys
How to Keep Your Office Afloat Doing Court Appointed Work
Fixing the System
A Report
Don't Tell Lawyer Jokes
My brother sent me this article which tells of two men getting arrested for telling a lawyer joke outside the courthouse.
Somehow, I think there must be more (a lot more) to the story.
Somehow, I think there must be more (a lot more) to the story.
12 January 2005
A Jury From the Prosecutor's Side
Here is a thrilling, mind-boggling, amazing, and suspense filled rendition of a jury trial from the point of view of a prosecutor.
CAUTION: Make sure you set aside plenty of time so you can read it a couple of times and absorb all the subtleties.
CAUTION: Make sure you set aside plenty of time so you can read it a couple of times and absorb all the subtleties.
No Police Report for YOU!!!
Amanda asked an ancillary question to her presentence report question answered here: "And why are you not allowed a copy of the police report? Do you get to see any portion of it before the trial, or have any idea of what it contains before the prosecutor starts to refer from it?"
Here is the discovery I am allowed by the Rules of the Virginia Supreme Court. It's too big to post in toto but here's the part which keeps me from getting police reports:
What might be in the police report that's mandated? First, there are the statements made by the client. The prosecutor must turn these over to me under 3A:11(b)(1). As well, there is the requirement under Brady that prosecutors disclose evidence which might tend to show that my client is not guilty. However, even assuming that a prosecutor would see eye to eye with me about what is exculpatory the prosecutor can just tell me the information without giving me the report.
Personally, I think the jurisdictions which turn over the police reports operate better. There are no silly little games about what the officer is going to say or what the officer thought happened that night (or at least there are far fewer). If the Rules or the law were to change such that discovery required police reports to be turned over perhaps we could change criminal procedure somewhat and stop requiring so many policemen to come to court every day. As it is all the officers have to come to court for every offense, if for no other reason than the fact that they fill the spot of the police report. Pretty much every day I walk into the courtroom, grab Officer Smith, go out in the hallway, and get him to tell me the information which I could have gotten through the report.
Now, I understand that in some Virginia jurisdictions there is basically a state of open warfare between prosecutors and defense attorneys. I don't practice in any of them but I hear that in some places it is so hard to get any information from the police report that defense attorneys try to get it by suing prosecutors under the Freedom Of Information Act.
Here is the discovery I am allowed by the Rules of the Virginia Supreme Court. It's too big to post in toto but here's the part which keeps me from getting police reports:
3A:11(b)(2) - This subparagraph does not authorize the discovery . . . of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case, except as provided in clause (ii) of subparagraph (b)(1) of this Rule [expert and medical reports].As a practical matter this allows any prosecutor who so desires to deny me access to the report. Now, in a number of jurisdictions the prosecutor just turns over a copy as part of an "open file" policy. In others, the prosecutor will read over the report and tell you what he thinks you need to know. In some there is no communication which is not mandated.
What might be in the police report that's mandated? First, there are the statements made by the client. The prosecutor must turn these over to me under 3A:11(b)(1). As well, there is the requirement under Brady that prosecutors disclose evidence which might tend to show that my client is not guilty. However, even assuming that a prosecutor would see eye to eye with me about what is exculpatory the prosecutor can just tell me the information without giving me the report.
Personally, I think the jurisdictions which turn over the police reports operate better. There are no silly little games about what the officer is going to say or what the officer thought happened that night (or at least there are far fewer). If the Rules or the law were to change such that discovery required police reports to be turned over perhaps we could change criminal procedure somewhat and stop requiring so many policemen to come to court every day. As it is all the officers have to come to court for every offense, if for no other reason than the fact that they fill the spot of the police report. Pretty much every day I walk into the courtroom, grab Officer Smith, go out in the hallway, and get him to tell me the information which I could have gotten through the report.
Now, I understand that in some Virginia jurisdictions there is basically a state of open warfare between prosecutors and defense attorneys. I don't practice in any of them but I hear that in some places it is so hard to get any information from the police report that defense attorneys try to get it by suing prosecutors under the Freedom Of Information Act.
In Celebration of 2 Years
In celebration of 2 years of CrimLaw I am spending my morning waiting for Verizon to come fix my primary phone line (you know, the one on my card).
Life sucks as a lawyer when your phones don't work.
Life sucks as a lawyer when your phones don't work.
11 January 2005
DeathLaw - USA
1) Ah yes, the political season has started in Virginia. How do I know? Both sides are already lobbing shells at each other. The questions are whether the death penalty issue will be a 9mm round or a bazooka shell and who will be hit?
2) In Connecticut a letter from the Archbishop has prompted local priests to speak out against the State killing a man convicted of murder. A bill has been filed to get rid of Connecticut's death penalty (which hadn't been used in 40 years). Of course, the cost of all this is greater than the cost would have been just to keep him in prison (a sentence of death by long term imprisonment). The general populace seems split over the matter.
3) Yet another case of police just going out and gathering DNA samples without suspicion.
4) A commentary from Texas against the death penalty.
2) In Connecticut a letter from the Archbishop has prompted local priests to speak out against the State killing a man convicted of murder. A bill has been filed to get rid of Connecticut's death penalty (which hadn't been used in 40 years). Of course, the cost of all this is greater than the cost would have been just to keep him in prison (a sentence of death by long term imprisonment). The general populace seems split over the matter.
3) Yet another case of police just going out and gathering DNA samples without suspicion.
4) A commentary from Texas against the death penalty.
DeathLaw - Abroad
1) Taiwan has done away with the death penalty for those under 18 or over 80.
2) In Mauritania they give you a pass the first two times, but the third time you try a coup they ask for the death penalty.
3) In Rwanda the question is whether halting the death sentence for the 10,000 people who have been sentenced to die would cause a huge backlash from Tutsis because of the 800,00 people that had been killed leading to the death sentences.
4) How does an Indian police official react to 6 recent slayings? "We can’t prevent murders." Now, just imagine your local chief of police saying something like that . . .
5) Zimbabwe: "The only Government pathologist, Dr Alex Mapunda, resigned in May last year and since then, bodies of persons suspected to be murder victims are piling up in hospital mortuaries while the alleged killers have been awaiting their trials in remand prison."
2) In Mauritania they give you a pass the first two times, but the third time you try a coup they ask for the death penalty.
3) In Rwanda the question is whether halting the death sentence for the 10,000 people who have been sentenced to die would cause a huge backlash from Tutsis because of the 800,00 people that had been killed leading to the death sentences.
4) How does an Indian police official react to 6 recent slayings? "We can’t prevent murders." Now, just imagine your local chief of police saying something like that . . .
5) Zimbabwe: "The only Government pathologist, Dr Alex Mapunda, resigned in May last year and since then, bodies of persons suspected to be murder victims are piling up in hospital mortuaries while the alleged killers have been awaiting their trials in remand prison."
10 January 2005
Handcuffs and Non-Arrest
Sadly, my very first case involved an argument along these lines and I lost. Of course, the prosecutor didn't really need my client's drunken statements to prove the vandalism. I think all I accomplished was to amuse the judge.
Writing the Order in Your Client's Case
We don't ghost write final orders in Virginia (at least not in criminal cases).
Just imagine the fun I could have . . .
"The Court finds that this case of egregious over-reach on the part of the prosecutor is supported by no legal precedent and is brought in exceedingly poor judgment. Therefore, this Court ORDERS that this jay-walking case be dismissed with prejudice and admonishes the prosecutor to never again dare to insinuate that any of Mr. Lammers' clients would ever do such a dastardly deed."
Of course, the world being what it is prosecutors would get to write more orders than I would. shudder ;-)
Just imagine the fun I could have . . .
"The Court finds that this case of egregious over-reach on the part of the prosecutor is supported by no legal precedent and is brought in exceedingly poor judgment. Therefore, this Court ORDERS that this jay-walking case be dismissed with prejudice and admonishes the prosecutor to never again dare to insinuate that any of Mr. Lammers' clients would ever do such a dastardly deed."
Of course, the world being what it is prosecutors would get to write more orders than I would. shudder ;-)
Canine Searches
If you're here looking for information about canine searches the relevant posts are in the column on the right side.
Grits for Breakfast has also commented here.
Grits for Breakfast has also commented here.
In the Halls of Justice
Words from a defense attorney to a group of people (probably a family) overheard as I walked down the hall outside the district courtrooms:
Okay. You tell me where you can honestly buy a Lexus for $75.At which point I passed out of ear shot.
I mean it, tell me. I want to go buy one myself . . .
09 January 2005
Sentencing Report Cannot Be Given to Defendants
Amanda Butler, of Crescat Sententia fame, writes to ask some questions about the sentencing guidelines post of a couple days back:
Then, in 2003 the Attorney General issued an opinion which held:
Of course, there are all sorts of problems with that interpretation. First, the segments are not together as a discrete group and even if they were do not prohibit the defendant from receiving a copy of his sentencing report. The first is a guarantee that an agent of the defendant will receive a copy of the report. The second is a guarantee that the defendant will be allowed to properly prepare for a sentencing hearing. The third is a guarantee that the personal information gathered about the defendant will not be available to the general public. Remember, it is a basic, long-standing principal of the law that "Tout es que la loi ne defend pas est permis" (that which is not prohibited is allowed).
Second, if the defendant chooses to represent himself the AG's opinion goes right out the window. As his own counsel the defendant would have to receive the report at least five days before the hearing. He would have to have the report in hand to properly cross examine the probation officer who prepared it. As well, he would be allowed "permanent use" of the report.
Third, the attorney is the defendant's agent. By delivering the papers to him the government is delivering them to the defendant just as it is when it delivers discovery replies, motions, briefs &cetera. There is a duty to turn those papers over (at the very least if the client requests them). It's my understanding (though I must admit I have not read the ethics opinion) that the Bar punted on this and said that since the AG's opinion had the force of law it would not contradict it with a LEO.
Fourth . . . Okay, I admit I don't have a fourth off the top of my head. However, 1-3 came to me without even having to think about them too much. That said, I'm sure with research there are probably reasons 4-6. There may even be reasons 7-10.
The difficulty is that the Legislature is assumed to know about an AG's opinion and therefore it is given force of law if the Legislature does not pass legislation overturning it (and you thought the Executive branch wasn't supposed to unilaterally make law). The judges have fallen right into line and I get a cover sheet with each of my clients' presentence reports telling me that the Chief Judge of the Circuit orders me not to turn over the report (I don't have one in front of me but that's the general gist). They also usually come with a 2003 letter which states:
(b) The presentence report is too long for a defendant to write down the whole thing unless I want to spend days at the jail.
(c) Intent? I have no idea. In most cases the majority of the information came from the defendant's interview with the probation officer to begin with. In going over the report I'm obligated to give him every bit of information in it and if he calls me two years later I will be still be obligated to verbally give him every bit of the information. He just can't have the actual papers.
It's a silly inconvenience. If I could think of how it could be interpreted as a "tough on criminals" issue I'd say it was political but it just seems to far removed for that. Anybody out there got any ideas?
To Sum Up: It's a silly rule which is not supported by the statute but I still have to follow it.
(1) (a) Just why is it that the defense attorney cannot give a copy of the presentencing report to his client? (b) Can he read very slowly so the client can transcribe his own copy? (c) What is the intent of that rule?(a) When I started practice it was common to send a copy of the presentence report to the client. Because of the widespread use of regional jails some lawyers I knew would send the report to the client and write him that he should call next Wednesday afternoon to go over anything which concerned him. I never cared to do it that way, but I sent my clients copies ahead of time so they could read them before I came to the jail.
Then, in 2003 the Attorney General issued an opinion which held:
"A defense attorney who copies a defendant's presentence report or provides the original or a copy of such report to the defendant is in violation of 19.2-299. Virginia code sec. 19.2-299 authorizes defense counsel to advise and review the contents of the report with the defendant."Here is Va. Code sec. 19.2-299. The statute stands entirely mute as to the issue of whether the client is entitled to a copy of his presentence report. How then did the Attorney General get there? As best I can figure this section of 19.2-299(A) must be the basis:
The probation officer [shall] furnish[] a copy of this report at least five days prior to sentencing to counsel for the accused . . . for [] permanent use . . . The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall have been advised of its contents . . . The report of the investigating officer shall at all times be kept confidential by each recipient.If you squint really hard, use tons of desire, turn your head at just the right angle, and chop the portions underlined above away from the rest of the section it's possible to stretch that to mean "The defense attorney gets a copy, reads it to the defendant one time, and after the sentencing hearing the defense attorney must never again speak of this taboo subject." (the counsel for for the accused gets a copy, the client is advised of its contents, afterwards counsel must keep the report confidential) Ya' gotta believe . . .
Of course, there are all sorts of problems with that interpretation. First, the segments are not together as a discrete group and even if they were do not prohibit the defendant from receiving a copy of his sentencing report. The first is a guarantee that an agent of the defendant will receive a copy of the report. The second is a guarantee that the defendant will be allowed to properly prepare for a sentencing hearing. The third is a guarantee that the personal information gathered about the defendant will not be available to the general public. Remember, it is a basic, long-standing principal of the law that "Tout es que la loi ne defend pas est permis" (that which is not prohibited is allowed).
Second, if the defendant chooses to represent himself the AG's opinion goes right out the window. As his own counsel the defendant would have to receive the report at least five days before the hearing. He would have to have the report in hand to properly cross examine the probation officer who prepared it. As well, he would be allowed "permanent use" of the report.
Third, the attorney is the defendant's agent. By delivering the papers to him the government is delivering them to the defendant just as it is when it delivers discovery replies, motions, briefs &cetera. There is a duty to turn those papers over (at the very least if the client requests them). It's my understanding (though I must admit I have not read the ethics opinion) that the Bar punted on this and said that since the AG's opinion had the force of law it would not contradict it with a LEO.
Fourth . . . Okay, I admit I don't have a fourth off the top of my head. However, 1-3 came to me without even having to think about them too much. That said, I'm sure with research there are probably reasons 4-6. There may even be reasons 7-10.
The difficulty is that the Legislature is assumed to know about an AG's opinion and therefore it is given force of law if the Legislature does not pass legislation overturning it (and you thought the Executive branch wasn't supposed to unilaterally make law). The judges have fallen right into line and I get a cover sheet with each of my clients' presentence reports telling me that the Chief Judge of the Circuit orders me not to turn over the report (I don't have one in front of me but that's the general gist). They also usually come with a 2003 letter which states:
Attorney General Jerry W. Kilgore recently issued an official advisory opinion regarding the above captioned statute [19.2-299]. It was his opinion "that it is a violation of 19.2-299 for a defense attorney to copy a defendant's presentence report or provide the original or a copy of such report to the defendant. Virginia code sec. 19.2-299 authorizes defense counsel to advise and review the contents of the report with the defendant."Consequently, clients do not get the presentence report.
In view of this opinion several Circuit Courts are requiring a cover sheet, such as the one attached, to accompany all presentence reports sent to defense counsel.
Please advise all districts of this Attorney General Opinion, Chief probation and Parole officers should consult with their Chief Circuit Court Judge regarding this matter.
(b) The presentence report is too long for a defendant to write down the whole thing unless I want to spend days at the jail.
(c) Intent? I have no idea. In most cases the majority of the information came from the defendant's interview with the probation officer to begin with. In going over the report I'm obligated to give him every bit of information in it and if he calls me two years later I will be still be obligated to verbally give him every bit of the information. He just can't have the actual papers.
It's a silly inconvenience. If I could think of how it could be interpreted as a "tough on criminals" issue I'd say it was political but it just seems to far removed for that. Anybody out there got any ideas?
To Sum Up: It's a silly rule which is not supported by the statute but I still have to follow it.
08 January 2005
Off Point: Why a Yellow Ribbon?
[note] This first went up as a much larger, much more emotional post. I apologize to anyone who saw that; hopefully not too many of you did since I pulled it down quickly. I have tried to pare it down to a more manageable size and make the argument more rational (including cites etc.). Having pulled what I have out this may read a little choppy. Hopefully, it's not too bad. BTW, not yelling at you Blonde Justice. It just seemed like an interesting subject to post about and the next thing I know the emotions kicked in and I was in a rantfest.[end note]
Blonde Justice wonders why some people have yellow ribbons on their cars. Here's why I have one:
My family has always had men who served in the military. I served, my brother served, my father served around the Vietnam era, family members served in WW II, we have memorabilia handed down from the War Between the States. Among people of our ilk there are very bitter memories of how members of the military have been treated; these memories are particularly strongly rooted in Vietnam.
Vietnam. When the Academy turned on us. Vietnam when large numbers of citizens evinced cowardice by refusing to serve either through manipulation of the system, draft dodging, or outright desertion (encouraged here). Vietnam when a massive victory over the enemy was reversed when members of the elite gave aid and comfort to the enemy - the most remembered even going so far as to tour enemy military compounds and actively provide propaganda through misrepresentations of what was happening to POW's. When soldiers dared not wear their uniforms in public because they would be spat on and called fascists or baby-killers. When the citizenry at best abandoned and looked down those serving, at worst attacked and belittled them.
I know that an intelligent rebuttal can probably be made to every one of those points. It won't change the perception one bit. There is too much smoke in the air to deny the fire. The disagreements about policy and the war were not constrained to the political arena; they were actively played out in the refusal to serve and the wretched treatment of those who served.
There are those who would tell you this has changed. They are both right and wrong. The forces which brought this about before are still there; however, they do not have the popular support they had during the Vietnam era. These forces are just as anti-soldier as before they just can't say it out loud. However, at times it comes through loud and clear.
1991 - Operation Desert Shield / Storm leads to desertions by some who refuse to live up to their obligations. I was not in the States at the time but I clearly remember reading papers from home telling how these deserters were being lionized by certain people. Supporting deserters is anti-soldier.
1993 - The infamous incident in 1993 with General McCaffrey
Personally, I experienced a watered down version of all this when I would come home from the Army on leave and people would ask me what went wrong so that I had to join up and express compassion for me because I was in the military.
Anyway, the reason for the ribbon is not so much for the troops. A soldier really doesn't need to be reassured that veterans are behind him. Displaying the ribbon definitely isn't so that some money can be sent to do something for the soldiers. I never believe those claims; I developed a healthy cynicism toward them as I watched all sorts of soldiers getting ripped off buying POW/MIA stuff which was going to funnel money into investigating what happened to those left behind (with the amount of money that should have been since raised since hostilities ended the manufacturers could have bought every square inch of Vietnam by now). Anyway, our soldiers are usually well taken care of as far as niceties go.
The reason for the ribbon is to remind people of the shameful way that our nation behaved toward soldiers in the past and remind them that it will not be tolerated this time. The perception from where I'm at is that the reason it's not done in the major cities is because it is socially unacceptable. To have the ribbon showing support for the troops is to invite ridicule or perhaps even vandalism. And if the attitude is such that an open show of support will not be tolerated then we must all be concerned what the attitude of the future will be. I have a ribbon on my vehicle to show that that next step is not acceptable, not now, not ever.
Blonde Justice wonders why some people have yellow ribbons on their cars. Here's why I have one:
My family has always had men who served in the military. I served, my brother served, my father served around the Vietnam era, family members served in WW II, we have memorabilia handed down from the War Between the States. Among people of our ilk there are very bitter memories of how members of the military have been treated; these memories are particularly strongly rooted in Vietnam.
Vietnam. When the Academy turned on us. Vietnam when large numbers of citizens evinced cowardice by refusing to serve either through manipulation of the system, draft dodging, or outright desertion (encouraged here). Vietnam when a massive victory over the enemy was reversed when members of the elite gave aid and comfort to the enemy - the most remembered even going so far as to tour enemy military compounds and actively provide propaganda through misrepresentations of what was happening to POW's. When soldiers dared not wear their uniforms in public because they would be spat on and called fascists or baby-killers. When the citizenry at best abandoned and looked down those serving, at worst attacked and belittled them.
I know that an intelligent rebuttal can probably be made to every one of those points. It won't change the perception one bit. There is too much smoke in the air to deny the fire. The disagreements about policy and the war were not constrained to the political arena; they were actively played out in the refusal to serve and the wretched treatment of those who served.
There are those who would tell you this has changed. They are both right and wrong. The forces which brought this about before are still there; however, they do not have the popular support they had during the Vietnam era. These forces are just as anti-soldier as before they just can't say it out loud. However, at times it comes through loud and clear.
1991 - Operation Desert Shield / Storm leads to desertions by some who refuse to live up to their obligations. I was not in the States at the time but I clearly remember reading papers from home telling how these deserters were being lionized by certain people. Supporting deserters is anti-soldier.
1993 - The infamous incident in 1993 with General McCaffrey
I had just walked out of the southern entrance, passing an attractive woman. I'm in uniform. Fifteen rows of ribbons. A beautiful day. I said, happily, Hello. How are you? She said, I don't talk to the military, and stomped by me. I don't actually know if she was in the administration, but I assume she was.At This Time - There are those who deny the anti-war movement has ever been anti-soldier ("While there's little doubt that some Vietnam vets in uniform were spat upon during those turbulent years, no proof exists that antiwar protesters were the spitters.") and there are those encouraging soldiers to desert. Rallies have taken place all over the place but mostly in DC, San Fran, and places to the North-NorthEast. One doubts an active duty soldier would be welcome.
Personally, I experienced a watered down version of all this when I would come home from the Army on leave and people would ask me what went wrong so that I had to join up and express compassion for me because I was in the military.
Anyway, the reason for the ribbon is not so much for the troops. A soldier really doesn't need to be reassured that veterans are behind him. Displaying the ribbon definitely isn't so that some money can be sent to do something for the soldiers. I never believe those claims; I developed a healthy cynicism toward them as I watched all sorts of soldiers getting ripped off buying POW/MIA stuff which was going to funnel money into investigating what happened to those left behind (with the amount of money that should have been since raised since hostilities ended the manufacturers could have bought every square inch of Vietnam by now). Anyway, our soldiers are usually well taken care of as far as niceties go.
The reason for the ribbon is to remind people of the shameful way that our nation behaved toward soldiers in the past and remind them that it will not be tolerated this time. The perception from where I'm at is that the reason it's not done in the major cities is because it is socially unacceptable. To have the ribbon showing support for the troops is to invite ridicule or perhaps even vandalism. And if the attitude is such that an open show of support will not be tolerated then we must all be concerned what the attitude of the future will be. I have a ribbon on my vehicle to show that that next step is not acceptable, not now, not ever.
Dillon's Rule
Okay. The problem here is that Dillon's Rule is just plain old common sense. What's Dillon's Rule?
It could be argued that precedent from appellate courts no longer apply. The law of County X is only subject to the interpretations that the local judge gives it (and you thought some judges had a god complex before).
Even more likely, local criminal ordinances could become complex and entirely different from locality to locality. For instance, under Virginia law any theft of an item valued at $200 or more can lead to a penalty which maxes out at 20 years. Sentencing is in no way tied to the amount of money stolen; $202 or $2 million will receive the same sentencing recommendation. This has been a source of conflict in the recent past. Some localities want to tie penalties to the amount taken. Others, want to keep it the way it is. So without Dillons Rule Locality X will have mandatory prison sentences of 5 years for anyone who steals over $500, Locality Y will impose only probation unless over $1,000 is stolen, and Locality Z will leave the sentencing entirely to the judge's discretion.
Then, of course, will come the traffic rules. You will be driving along on a road which is 55 mph, along with three other cars. The officer will pull you over and ticket you. Why you? Because the local ordinance states that those who have paid local property taxes on their vehicle and have the sticker on their windshield can drive 55 mph but those who have not are only allowed to travel 35 mph. What? You say that local law enforcement already picks non-locals to ticket? Naw, I don't believe it.
The examples could go on forever. I'm sure there are all sorts of examples in other areas of the law but those of you who practice in those areas can add those in comments.
The first part of Dillon’s Rule states that local governments have only three types of powers:Now, imagine a world wherein this were not the rule. Say the rule was that a locality can make law as to anything not specifically denied. Law then becomes a function of the governing body of the locality. Let's explore how this could be applied:
those granted in express words,
those necessarily or fairly implied in or incident to the powers expressly granted, and
those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.
The second part of Dillon’s Rule states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred. This is the rule of strict construction of local government powers.
It could be argued that precedent from appellate courts no longer apply. The law of County X is only subject to the interpretations that the local judge gives it (and you thought some judges had a god complex before).
Even more likely, local criminal ordinances could become complex and entirely different from locality to locality. For instance, under Virginia law any theft of an item valued at $200 or more can lead to a penalty which maxes out at 20 years. Sentencing is in no way tied to the amount of money stolen; $202 or $2 million will receive the same sentencing recommendation. This has been a source of conflict in the recent past. Some localities want to tie penalties to the amount taken. Others, want to keep it the way it is. So without Dillons Rule Locality X will have mandatory prison sentences of 5 years for anyone who steals over $500, Locality Y will impose only probation unless over $1,000 is stolen, and Locality Z will leave the sentencing entirely to the judge's discretion.
Then, of course, will come the traffic rules. You will be driving along on a road which is 55 mph, along with three other cars. The officer will pull you over and ticket you. Why you? Because the local ordinance states that those who have paid local property taxes on their vehicle and have the sticker on their windshield can drive 55 mph but those who have not are only allowed to travel 35 mph. What? You say that local law enforcement already picks non-locals to ticket? Naw, I don't believe it.
The examples could go on forever. I'm sure there are all sorts of examples in other areas of the law but those of you who practice in those areas can add those in comments.
Around the Web
1) It's not a DUI if the lady is in a mechanical wheelchair.
2) Don't talk to the FBI (or for that matter any federal agent) about anything, ever.
3) You know your case is going well when the judge stops testimony and says in open court that the testifying officer "is simply not a credible witness under oath."
4) Actually, while I understand the point that Fed84 is making, I must say that this is something which I would think fairly easily countered in closing argument: "So, what does the prosecutor want Client to do? Slug the officer? Is that what the prosecutor's saying? That instead of keeping the peace and obeying the orders of police officers an innocent person will attack the officer? That's ridiculous. Was he quiet because he was shocked? Was he quiet because he was afraid of the guys with the guns who were all around him? Either is more likely than someone obeying the officer because he was guilty."
5) Don't use a breath mint to mask the smell of alcohol. Beside the fact that it won't work it will make your breath test turn out higher.
6) Sheriffs really shouldn't get in trouble to begin with because it leads to further problems.
7) I'm a PD offers more clarification on what prosecutors in her jurisdiction look like from where she sits.
8) Whatdoyaknow? We aren't putting as many people in Virginia' prisons as we thought we would. Wow. It's hard to overestimate how many people Virginia will send to prison.
9) Imagine sitting in the prosecutor's office when he found out the Law & Order episode his BIG, EXPERT, Witness said he had helped write and which the same IMPORTANT, ALLKNOWING Witness said was what the defendant modeled her murder on - imagine sitting in that office when he found out that the episode never existed. He must not own a gun because I don't see anything in the article about him shooting the "expert".
10) No more "shock incarceration" in the federal system. You'll just have to serve that gazillion years in jail for jaywalking in front of the federal building.
11) From here you should be able to get to the vid of a death appeal argument in Connecticut. I can't vouch for it since I'm currently using dialup but Kirby's always been reliable.
12) Big Brother Alert: This takes cherry picking to a whole new level and if your police department has time to do it you are overpaying taxes because you have too many officers.
13) A discussion of the "Honest but Ign'ant CEO" defense can be found here and (more recently) here. This has got to be a case by case thing where you decide whether it is incompetence or willful blindness.
14) Is it nunc pro tunc when the government wants to add restitution 4-6 months after the sentencing date? I respectfully dissent doesn't think so and I'm inclined to agree.
15) Anti-Spam laws are failing. Yeah, I know. You're shocked!! Yahoo! does a very good job of weeding out Spam targeted at my account and, when I use it, AOL does an adequate job (although it also tends to get too large a portion of my real mail). Nevertheless, the infinitely creative spammers always get something through: V1.agr.a - re: enjoyed the beach (with the nude jpg in the post) - URGENT: MOST IMPORTANT REPLY REQUESTED HELLO. I AM THE SON OF BISTRON NEHANDRU, THE FORMER PRIME MINISTER OF NIGERIA . . .
LvLaporte
16) In Alaska the judge rules it's the prosecutor's job to prosecute cases (not a victims' rights group).
17) I remember Jerry "The King" Lawler when wrestling wasn't the big production it is today. Every Saturday morning he, Jimmy "The Mouth of the South" Hart and these two announcer guys would be on TV. The ring seemed to have about 40-50 foldup chairs around it and looked like it was in some warehouse or studio with ugly brown curtains hung all the way round that made it look claustrophobic. All I really remember was a lot of yelling and some sort of drama when the "pile-driver" was made an illegal move (I didn't watch as much as many of my peers did). Of course, later on there were all the issues with the mentally deranged comic but I had long past stopped watching wrestling by then and only saw the hit on late night TV.
Which is a long way to go to point out that someone tried to burglarize the King. However, incompetence carried the day.
2) Don't talk to the FBI (or for that matter any federal agent) about anything, ever.
3) You know your case is going well when the judge stops testimony and says in open court that the testifying officer "is simply not a credible witness under oath."
4) Actually, while I understand the point that Fed84 is making, I must say that this is something which I would think fairly easily countered in closing argument: "So, what does the prosecutor want Client to do? Slug the officer? Is that what the prosecutor's saying? That instead of keeping the peace and obeying the orders of police officers an innocent person will attack the officer? That's ridiculous. Was he quiet because he was shocked? Was he quiet because he was afraid of the guys with the guns who were all around him? Either is more likely than someone obeying the officer because he was guilty."
5) Don't use a breath mint to mask the smell of alcohol. Beside the fact that it won't work it will make your breath test turn out higher.
6) Sheriffs really shouldn't get in trouble to begin with because it leads to further problems.
7) I'm a PD offers more clarification on what prosecutors in her jurisdiction look like from where she sits.
8) Whatdoyaknow? We aren't putting as many people in Virginia' prisons as we thought we would. Wow. It's hard to overestimate how many people Virginia will send to prison.
9) Imagine sitting in the prosecutor's office when he found out the Law & Order episode his BIG, EXPERT, Witness said he had helped write and which the same IMPORTANT, ALLKNOWING Witness said was what the defendant modeled her murder on - imagine sitting in that office when he found out that the episode never existed. He must not own a gun because I don't see anything in the article about him shooting the "expert".
10) No more "shock incarceration" in the federal system. You'll just have to serve that gazillion years in jail for jaywalking in front of the federal building.
11) From here you should be able to get to the vid of a death appeal argument in Connecticut. I can't vouch for it since I'm currently using dialup but Kirby's always been reliable.
12) Big Brother Alert: This takes cherry picking to a whole new level and if your police department has time to do it you are overpaying taxes because you have too many officers.
13) A discussion of the "Honest but Ign'ant CEO" defense can be found here and (more recently) here. This has got to be a case by case thing where you decide whether it is incompetence or willful blindness.
One aspect of the Ebbers trial that will be interesting is that, according to earlier reports, Ebbers completely avoided using e-mail to communicate with others in the company, which denies the government a source of information that has been a boon to its corporate fraud and obstruction of justice cases the past few years (e.g. Arthur Andersen, Frank Quattrone). Ebbers apparently refused to review written materials and only communicated orally with subordinates, not even using voice-mail. The usual paper trail in a fraud case may be missing here, and the trial could come down to whether the jury believes Sullivan or Ebbers. Ignorance without a paper trail may be bliss.Having talked to a few businessmen, this may well be the business model of the future. Keeping any kind of record is extremely dangerous so only those which are required will even be made - whether they be paper or electronic or voice mail.
14) Is it nunc pro tunc when the government wants to add restitution 4-6 months after the sentencing date? I respectfully dissent doesn't think so and I'm inclined to agree.
15) Anti-Spam laws are failing. Yeah, I know. You're shocked!! Yahoo! does a very good job of weeding out Spam targeted at my account and, when I use it, AOL does an adequate job (although it also tends to get too large a portion of my real mail). Nevertheless, the infinitely creative spammers always get something through: V1.agr.a - re: enjoyed the beach (with the nude jpg in the post) - URGENT: MOST IMPORTANT REPLY REQUESTED HELLO. I AM THE SON OF BISTRON NEHANDRU, THE FORMER PRIME MINISTER OF NIGERIA . . .
LvLaporte
16) In Alaska the judge rules it's the prosecutor's job to prosecute cases (not a victims' rights group).
17) I remember Jerry "The King" Lawler when wrestling wasn't the big production it is today. Every Saturday morning he, Jimmy "The Mouth of the South" Hart and these two announcer guys would be on TV. The ring seemed to have about 40-50 foldup chairs around it and looked like it was in some warehouse or studio with ugly brown curtains hung all the way round that made it look claustrophobic. All I really remember was a lot of yelling and some sort of drama when the "pile-driver" was made an illegal move (I didn't watch as much as many of my peers did). Of course, later on there were all the issues with the mentally deranged comic but I had long past stopped watching wrestling by then and only saw the hit on late night TV.
Which is a long way to go to point out that someone tried to burglarize the King. However, incompetence carried the day.
07 January 2005
Few Posts
Sorry that posts have been a little on the light side this week. I had a couple of time consuming trials to prep and my Earthlink DSL hook-up has gone splat. So when I do use the internet it's by regular dialup and that is just painfully slow.
I've queried Earthlink for help and hopefully will be back up to speed soon.
I've queried Earthlink for help and hopefully will be back up to speed soon.
06 January 2005
Blog Link Rules
Rules. We got rules around here! Of course they are all subject ultimately to my whim, but generally I follow them.
What brings on that rant? Well I noticed earlier today that Commonwealth Conservative is trying to start a "web alliance." This would be a number of Virginia blogs who link to each other in a specific section much like the Bear Flag League out in California. It's not a particularly bad idea but the reason that it caught my eye is that he plans to call it the Old Dominion Blog Alliance. Okay, now come back to CrimLaw and look to your left and down the left most column; you will see "Old Dominion Blogs." I found this humorous and couldn't resist taking a little bit of a jab over in the comments to CC's post. John Behan was kind enough to send me an email explaining that he wasn't trying to lift something from me. Truth be told, I never really thought he was. Each State has but so many symbols that can be easily recognized by all, embody a unique quality of that State, and are not controversial. Of these, the title "Old Dominion" may be the most prominent in Virginia. It's not surprising that it was thought of by two different people - after all the "Virginia is for Lovers Alliance" just doesn't have the same ring to it.
Old Dominion Blogs
Still, I thought I might explain what gets a blog into my Old Dominion Blogs list. There are two basic rules: First, the blog must come from Virginia (yeah, I know that's kinda obvious). Second, it must consistently have "posts of worth." What exactly are "posts of worth"? Heck if I know. Well, okay, they are posts wherein I think there is information or rational analysis of subjects that there is a good chance that others would want to read. How 'bout that for a standard? With that kind of clarity I should probably be writing statutes.
To be included, the blog does not have to reflect a certain worldview. In line with my attempts to keep this site as politically neutral as I can I will put any Virginia blog which I judge to have posts of worth whether I agree with its worldview or not.
Criminal Law
To be put in this section there are two requirements and one preference: (R1) The blog must consistently address criminal matters as its primary concern. (R2) The blog must have entries which are not consistently abusive or out of touch with reality. This is obviously a lower standard than the "posts of worth" standard but I gotta cut my fellow criminal law types some slack. (P1) The blog should be written by an attorney who practices in this area. I don't care which side of the bench, just that the person knows of what he speaks. Heck, I'd link to a blog from a judge too but I ain't seen one which concentrates on criminal matters.
Exemplary
As far as I am concerned this is the Gold Standard. All of the blogs here (and one editorial comic) fire my imagination in some manner. As anyone who's been reading here for a while knows some blogs have moved in and out of this category. Southern Appeal and the Volokh Conspiracy have been there for a long time and are probably the King Blogs as far as I'm concerned. Anyway, the primary test here is whether I yearn to read the blog everyday and feel like I've missed something if I don't or (Heaven forefend) the blogging is light on that blog that day. Yep, I know that's incredibly subjective but that's the way it is. The one semi-solid rule I have is that this section should have a very limited number of links. This used to mean 3, now it means 5 - I doubt it will ever go much above that.
Daily List
This list has two types of links in it. (1) The majority are links to blogs which have quality posts often enough that I want to check them every day. (2) The remainder are links to blogs which I have discovered and want to check out for the time being. Because of the second type this list can tend to change more often than others. I plan to keep this section at 20 links or less but that is not a solid barrier.
All Other Links
There are entirely too many blogs out there which provide consistently good posts or flashes of brilliance for me to pay close attention to all of them all the time. These are generally the blogs which are found in the remaining links. I must admit that I do not, I cannot, read each of these blogs on a consistent basis. Most days I will pick one or two at random and scan it to see if anything really interesting has been posted lately.
General Rules
30 Day Rule: If the blog has not had a new post for over 30 days I will remove it. Some blogs have dispensations as far as this rule goes because I know they publish sporadically and the few times they do post the posts are of extremely good quality. However, most of the others will be subject to what amounts to fairly slack enforcement. When I notice it's been over 30 days I will check for a couple days and then remove it the next time I fiddle with the template.
4 Month Rule: As of today, I am imposing a rule that if someone wants me to link to his site it should be up and running 4 months. There is nothing more frustrating than linking to a site which has had a week's worth of amazingly good posts and then not seeing any more posts - ever. The only exception to this will be with sites which qualify under the Criminal Law section which can go up as soon as they begin posting.
No Diary Blogs: I've linked to a few of these and still do to some. However, it is highly unlikely that I will link to any new one. This is not to say that the blog cannot talk about what happens in the blogger's life or even post sappy pictures. It is to say that this cannot be the entire subject matter. There must be discussions of news, politics, law, theology, philosophy, or some other reason to read it.
Preference Against Professional Blogs: That is to say, if I believe the only reason a blog is up is because it is meant as an advertisement that blog must prove to me that it will continue to post and continue to post at an acceptable quality level. This may mean that it will take longer than 4 months before I relent and put it on my link list.
Okay, so now ya'll see my rules. Will I ever change them? Who knows? But they seem to pass the rational basis test so I think I'll keep them for now.
What brings on that rant? Well I noticed earlier today that Commonwealth Conservative is trying to start a "web alliance." This would be a number of Virginia blogs who link to each other in a specific section much like the Bear Flag League out in California. It's not a particularly bad idea but the reason that it caught my eye is that he plans to call it the Old Dominion Blog Alliance. Okay, now come back to CrimLaw and look to your left and down the left most column; you will see "Old Dominion Blogs." I found this humorous and couldn't resist taking a little bit of a jab over in the comments to CC's post. John Behan was kind enough to send me an email explaining that he wasn't trying to lift something from me. Truth be told, I never really thought he was. Each State has but so many symbols that can be easily recognized by all, embody a unique quality of that State, and are not controversial. Of these, the title "Old Dominion" may be the most prominent in Virginia. It's not surprising that it was thought of by two different people - after all the "Virginia is for Lovers Alliance" just doesn't have the same ring to it.
Old Dominion Blogs
Still, I thought I might explain what gets a blog into my Old Dominion Blogs list. There are two basic rules: First, the blog must come from Virginia (yeah, I know that's kinda obvious). Second, it must consistently have "posts of worth." What exactly are "posts of worth"? Heck if I know. Well, okay, they are posts wherein I think there is information or rational analysis of subjects that there is a good chance that others would want to read. How 'bout that for a standard? With that kind of clarity I should probably be writing statutes.
To be included, the blog does not have to reflect a certain worldview. In line with my attempts to keep this site as politically neutral as I can I will put any Virginia blog which I judge to have posts of worth whether I agree with its worldview or not.
Criminal Law
To be put in this section there are two requirements and one preference: (R1) The blog must consistently address criminal matters as its primary concern. (R2) The blog must have entries which are not consistently abusive or out of touch with reality. This is obviously a lower standard than the "posts of worth" standard but I gotta cut my fellow criminal law types some slack. (P1) The blog should be written by an attorney who practices in this area. I don't care which side of the bench, just that the person knows of what he speaks. Heck, I'd link to a blog from a judge too but I ain't seen one which concentrates on criminal matters.
Exemplary
As far as I am concerned this is the Gold Standard. All of the blogs here (and one editorial comic) fire my imagination in some manner. As anyone who's been reading here for a while knows some blogs have moved in and out of this category. Southern Appeal and the Volokh Conspiracy have been there for a long time and are probably the King Blogs as far as I'm concerned. Anyway, the primary test here is whether I yearn to read the blog everyday and feel like I've missed something if I don't or (Heaven forefend) the blogging is light on that blog that day. Yep, I know that's incredibly subjective but that's the way it is. The one semi-solid rule I have is that this section should have a very limited number of links. This used to mean 3, now it means 5 - I doubt it will ever go much above that.
Daily List
This list has two types of links in it. (1) The majority are links to blogs which have quality posts often enough that I want to check them every day. (2) The remainder are links to blogs which I have discovered and want to check out for the time being. Because of the second type this list can tend to change more often than others. I plan to keep this section at 20 links or less but that is not a solid barrier.
All Other Links
There are entirely too many blogs out there which provide consistently good posts or flashes of brilliance for me to pay close attention to all of them all the time. These are generally the blogs which are found in the remaining links. I must admit that I do not, I cannot, read each of these blogs on a consistent basis. Most days I will pick one or two at random and scan it to see if anything really interesting has been posted lately.
General Rules
30 Day Rule: If the blog has not had a new post for over 30 days I will remove it. Some blogs have dispensations as far as this rule goes because I know they publish sporadically and the few times they do post the posts are of extremely good quality. However, most of the others will be subject to what amounts to fairly slack enforcement. When I notice it's been over 30 days I will check for a couple days and then remove it the next time I fiddle with the template.
4 Month Rule: As of today, I am imposing a rule that if someone wants me to link to his site it should be up and running 4 months. There is nothing more frustrating than linking to a site which has had a week's worth of amazingly good posts and then not seeing any more posts - ever. The only exception to this will be with sites which qualify under the Criminal Law section which can go up as soon as they begin posting.
No Diary Blogs: I've linked to a few of these and still do to some. However, it is highly unlikely that I will link to any new one. This is not to say that the blog cannot talk about what happens in the blogger's life or even post sappy pictures. It is to say that this cannot be the entire subject matter. There must be discussions of news, politics, law, theology, philosophy, or some other reason to read it.
Preference Against Professional Blogs: That is to say, if I believe the only reason a blog is up is because it is meant as an advertisement that blog must prove to me that it will continue to post and continue to post at an acceptable quality level. This may mean that it will take longer than 4 months before I relent and put it on my link list.
Okay, so now ya'll see my rules. Will I ever change them? Who knows? But they seem to pass the rational basis test so I think I'll keep them for now.
05 January 2005
Sentencing By Status
The NYTimes ran an article discussing criminal sentencing in Virginia and the use of status as a basis for punishment rather than the offense itself. Both TalkLeft and Grits for Breakfast commented on this and Waddling Thunder (via email) asked me if I have any comment.
I do. I'd planned on posting on this earlier but got involved in trial prep.
The problem with the NYTimes article is that it seems to assume that the choices are between freedom and imprisonment. It's not quite that simple.
Here's a link to the sentencing worksheet for possession of a schedule I / II drug. If you go to Section D "Nonviolent Risk Assessment" you see the section about which the NYTimes dedicates most of its article. What this section is about is whether or not the defendant should be recommended for alternative programs. Now look at the top section "Ineligibility Conditions":
As you'll notice, under the very first condition, if the person is not already supposed to be incarcerated this section will not even apply to him. Incarceration is already recommended by an earlier section; all this section does is offer guidance as to whether the judge should depart from the recommendation and impose an alternative program. By taking the recommendation of this section the judge could either increase or decrease the punishment.
Of course, to understand this you must understand that probably about half the time the alternative is worse than the offered punishment. There are three post-trial alternatives in my jurisdiction: Detention Center, Diversion Center, and Day Reporting Center. Detention Center is a 4-6 month (6 month norm) lock in program which does not count as time served; it is a more intense program which isn't quite a boot camp program. Diversion Center is a 4-6 month (6 month norm) lock in program which does not count as time served; it is a less intense program with counseling and eventually work release as an effort to transit the defendant back to the real world. Day Reporting Center is basically drug court without the weekly involvement of the judge. It lasts a year and, at least in the beginning it has daily screenings and counseling. Mistakes lead to increasing sanctions (jail time which does not count as time served) and the program can ask the judge to remove the defendant and make him serve his suspended time; many defendants do not complete this program. Entry into any program subject to acceptance by that program and they will reject those who have mental issues or who have certain types of convictions (typically crimes of violence or drug distribution convictions)
Judges typically mix the programs or jail time with the programs. One popular thing to do is to order the Detention Center followed by the Diversion Center. This means probably 12 months and whatever time the defendant must spend in jail waiting for an opening in the program; at times the wait to get into each program has been as much as 4 months (more recently this seems to have been reduced to a month or so). All of this is dead time - it does not count against any time the judge has suspended over the defendant's head. Another common combination is Diversion Center combined with Day Reporting Center; 6 months dead time incarceration combined with a year of what amounts to super intense probation. Some judges seem to miss the "alternative" part of alternative sentencing altogether and sentence jail time followed by one or more programs.
A first felony conviction event usually comes with a recommendation of probation. A first time possession with intent to distribute starts with a 7 month sentence and often this is what the judge imposes. Often, a second, third, or even fourth felony conviction can carry a recommendation of a year or less (caveat: not talking about violent offenses just the typical addict record - larcenies, check forgery, drug possession). Comparing that to the fairly typical alternative dispositions above, a felony sentence serving 85% of the sentence imposed is often forgery, drug possession). Comparing that to the fairly typical alternative dispositions above, a felony sentence (of which 85% is served) is often an imposition of less time. Of course, we all figured this out some time ago. Thus we only ask for the alternative disposition when the client requests them and typically a client will not ask for alternative programs if he thinks it will delay his release.
In the case that a defendant wishes an alternative program the NYTimes is dead on in stating that status is used as a determining factor. The offending section is:
When this sheet was added to the sentencing guidelines I think every defense attorney I know had the same reaction as the NYTimes: that section is clearly unconstitutional. And we told the judges as much. I can clearly remember standing in front of a judge and illustrating this issue by pointing out that I would start out with 22 points and 31 if court appointed work didn't count as regular employment. Although I never got a one to say it out loud, the judges, through their actions, seemed to agree. I've even had a few prosecutors admit to me that they believe it unconstitutional (off the record).
The net effect has been that this sheet has become the most ignored section of the sentencing guidelines (remember Virginia's guidelines are recommendations and can be ignored). I rarely hear competent prosecutors give it more than a pro forma mention and judges do not claim it as the basis for their decisions. The argument has once again devolved to where it should be: the merits and failings of the individual in front of the judge. I've had a number of clients who do not qualify under this section receive alternative sentences and I've had clients who easily qualify be denied. I cannot claim this is the way it is around the entire Commonwealth but it is my experience in the jurisdictions wherein I practice.
What's frustrating about the NYTimes article is that it appears that it had a better argument to make under the Rape guidelines. I doubt the status considerations are ignored under those guidelines but I'm not sure exactly how they are applied. I've never had a rape case (yeah, I know, kinda weird but I've just never had one) so I'm not familiar with those guidelines. It would have been interesting if the article had gone over them and their application. However, they are given short-shrift in the last two paragraphs of the article.
I do. I'd planned on posting on this earlier but got involved in trial prep.
The problem with the NYTimes article is that it seems to assume that the choices are between freedom and imprisonment. It's not quite that simple.
Here's a link to the sentencing worksheet for possession of a schedule I / II drug. If you go to Section D "Nonviolent Risk Assessment" you see the section about which the NYTimes dedicates most of its article. What this section is about is whether or not the defendant should be recommended for alternative programs. Now look at the top section "Ineligibility Conditions":
As you'll notice, under the very first condition, if the person is not already supposed to be incarcerated this section will not even apply to him. Incarceration is already recommended by an earlier section; all this section does is offer guidance as to whether the judge should depart from the recommendation and impose an alternative program. By taking the recommendation of this section the judge could either increase or decrease the punishment.
Of course, to understand this you must understand that probably about half the time the alternative is worse than the offered punishment. There are three post-trial alternatives in my jurisdiction: Detention Center, Diversion Center, and Day Reporting Center. Detention Center is a 4-6 month (6 month norm) lock in program which does not count as time served; it is a more intense program which isn't quite a boot camp program. Diversion Center is a 4-6 month (6 month norm) lock in program which does not count as time served; it is a less intense program with counseling and eventually work release as an effort to transit the defendant back to the real world. Day Reporting Center is basically drug court without the weekly involvement of the judge. It lasts a year and, at least in the beginning it has daily screenings and counseling. Mistakes lead to increasing sanctions (jail time which does not count as time served) and the program can ask the judge to remove the defendant and make him serve his suspended time; many defendants do not complete this program. Entry into any program subject to acceptance by that program and they will reject those who have mental issues or who have certain types of convictions (typically crimes of violence or drug distribution convictions)
Judges typically mix the programs or jail time with the programs. One popular thing to do is to order the Detention Center followed by the Diversion Center. This means probably 12 months and whatever time the defendant must spend in jail waiting for an opening in the program; at times the wait to get into each program has been as much as 4 months (more recently this seems to have been reduced to a month or so). All of this is dead time - it does not count against any time the judge has suspended over the defendant's head. Another common combination is Diversion Center combined with Day Reporting Center; 6 months dead time incarceration combined with a year of what amounts to super intense probation. Some judges seem to miss the "alternative" part of alternative sentencing altogether and sentence jail time followed by one or more programs.
A first felony conviction event usually comes with a recommendation of probation. A first time possession with intent to distribute starts with a 7 month sentence and often this is what the judge imposes. Often, a second, third, or even fourth felony conviction can carry a recommendation of a year or less (caveat: not talking about violent offenses just the typical addict record - larcenies, check forgery, drug possession). Comparing that to the fairly typical alternative dispositions above, a felony sentence serving 85% of the sentence imposed is often forgery, drug possession). Comparing that to the fairly typical alternative dispositions above, a felony sentence (of which 85% is served) is often an imposition of less time. Of course, we all figured this out some time ago. Thus we only ask for the alternative disposition when the client requests them and typically a client will not ask for alternative programs if he thinks it will delay his release.
In the case that a defendant wishes an alternative program the NYTimes is dead on in stating that status is used as a determining factor. The offending section is:
When this sheet was added to the sentencing guidelines I think every defense attorney I know had the same reaction as the NYTimes: that section is clearly unconstitutional. And we told the judges as much. I can clearly remember standing in front of a judge and illustrating this issue by pointing out that I would start out with 22 points and 31 if court appointed work didn't count as regular employment. Although I never got a one to say it out loud, the judges, through their actions, seemed to agree. I've even had a few prosecutors admit to me that they believe it unconstitutional (off the record).
The net effect has been that this sheet has become the most ignored section of the sentencing guidelines (remember Virginia's guidelines are recommendations and can be ignored). I rarely hear competent prosecutors give it more than a pro forma mention and judges do not claim it as the basis for their decisions. The argument has once again devolved to where it should be: the merits and failings of the individual in front of the judge. I've had a number of clients who do not qualify under this section receive alternative sentences and I've had clients who easily qualify be denied. I cannot claim this is the way it is around the entire Commonwealth but it is my experience in the jurisdictions wherein I practice.
---------- ---------- ----------
What's frustrating about the NYTimes article is that it appears that it had a better argument to make under the Rape guidelines. I doubt the status considerations are ignored under those guidelines but I'm not sure exactly how they are applied. I've never had a rape case (yeah, I know, kinda weird but I've just never had one) so I'm not familiar with those guidelines. It would have been interesting if the article had gone over them and their application. However, they are given short-shrift in the last two paragraphs of the article.
03 January 2005
A Virginia Sentencing Hearing
I don't think I've ever blogged indepth about a sentencing hearing so I thought I'd go over one I had recently.
First, some background: In Virginia when a defendant is found guilty of a crime a presentence report is ordered and he comes back to court 2-3 months later to be sentenced. The presentence report goes over various aspects of the defendant's life including family history, education, medical history, criminal record, &cetera. The presentence report is mailed to the defense attorney who must go over it with his client but is forbidden to give the client a copy. The presentence report is sealed after the sentencing. [Consequently, I shan't be telling you what is in it. I shall only repeat what was stated in open court.]
Along with the presentence report comes the sentencing guidelines. In Virginia these are merely recommendations and appeals based upon these guidelines are forbidden.
My client had had his malicious wounding charge (5-20 years) reduced to unlawful wounding (up to 5 years) and pled guilty about two months prior.
The Hearing: I arrive in court and go back in to the lockup area to talk with my client. Then I go out and sit in the jury box for about 3 hours listening to other sentencings and trials, waiting for my client to be called. Finally, the prosecutor calls the name of my client, "John Smith."
I walk over to the defense table and stand there waiting for the deputy to bring my client out. Client comes out and stands next to me. The judge asks him if we've gone over the presentence report and if he understands. Client says, "Yes."
Next the judge asks if the prosecutor or I have any changes which need to be made to the presentence report. The prosecutor has none (the prosecutor never has any). I stand and tell the judge that we have a few.
First, I point the judge to the recitation of the facts: "Your honor, I suspect this comes straight from the police report. I don't know, since I'm not allowed a copy. However, the facts here say my client was drunk and trespassing on Mr. Jones' property, that Mr. Jones pinned him to the ground, that Mr. Smith got free and hit Mr. Jones with a lawn gnome. I ask you to remember that when we were here before the facts laid out had more to them. My client was trespassing - looking for a girl, dad came out, they argued, Client went to leave, Mrs. Jones told Mr. Jones not to let him go, Mr. Jones followed Mr. Smith - who then turned to confront him. Mr. Jones thought he saw Mr. Smith reach for something and hit him. Then Mr. Jones pinned Mr. Smith to the ground. Mr. Smith hit Mr. Jones with the lawn gnome to get him off of Mr. Smith."
Judge: "Yes Mr. Lammers, I remember this case." [all judges say this - it could be a misdemeanor shoplifting from three years ago and the judge will swear he remembers it; still it never hurts to remind them]
Me: "On page five it talks about his family history. His mother's second husband was Mr. Green not Mr. Gary. As well, my client would tell you that the domestic assault against his mother in the last paragraph was actually against his mother's boyfriend - that he never attacked his mother."
"On page 8 my client would tell you that he is Christian but not actually Baptist. He thought that he had to choose a particular denomination but he wanted to make sure he was absolutely truthful to your Honor today."
"On page 11 the last paragraph states that he did not go to substance abuse programs which were required by his juvenile probation officer. Mr Smith would tell you that he does not remember having been required to go to any program. That doesn't mean he wasn't - just that he has no memory of it. And that's all the corrections we offer, sir."
The judge asks if either the prosecution or defense have any evidence and neither does. The he asks for argument. The prosecution waives opening. [a standard ploy in cases wherein there is no jury]
I stand up to argue:
And thus ends another sentencing hearing in the Commonwealth of Virginia.
First, some background: In Virginia when a defendant is found guilty of a crime a presentence report is ordered and he comes back to court 2-3 months later to be sentenced. The presentence report goes over various aspects of the defendant's life including family history, education, medical history, criminal record, &cetera. The presentence report is mailed to the defense attorney who must go over it with his client but is forbidden to give the client a copy. The presentence report is sealed after the sentencing. [Consequently, I shan't be telling you what is in it. I shall only repeat what was stated in open court.]
Along with the presentence report comes the sentencing guidelines. In Virginia these are merely recommendations and appeals based upon these guidelines are forbidden.
My client had had his malicious wounding charge (5-20 years) reduced to unlawful wounding (up to 5 years) and pled guilty about two months prior.
The Hearing: I arrive in court and go back in to the lockup area to talk with my client. Then I go out and sit in the jury box for about 3 hours listening to other sentencings and trials, waiting for my client to be called. Finally, the prosecutor calls the name of my client, "John Smith."
I walk over to the defense table and stand there waiting for the deputy to bring my client out. Client comes out and stands next to me. The judge asks him if we've gone over the presentence report and if he understands. Client says, "Yes."
Next the judge asks if the prosecutor or I have any changes which need to be made to the presentence report. The prosecutor has none (the prosecutor never has any). I stand and tell the judge that we have a few.
First, I point the judge to the recitation of the facts: "Your honor, I suspect this comes straight from the police report. I don't know, since I'm not allowed a copy. However, the facts here say my client was drunk and trespassing on Mr. Jones' property, that Mr. Jones pinned him to the ground, that Mr. Smith got free and hit Mr. Jones with a lawn gnome. I ask you to remember that when we were here before the facts laid out had more to them. My client was trespassing - looking for a girl, dad came out, they argued, Client went to leave, Mrs. Jones told Mr. Jones not to let him go, Mr. Jones followed Mr. Smith - who then turned to confront him. Mr. Jones thought he saw Mr. Smith reach for something and hit him. Then Mr. Jones pinned Mr. Smith to the ground. Mr. Smith hit Mr. Jones with the lawn gnome to get him off of Mr. Smith."
Judge: "Yes Mr. Lammers, I remember this case." [all judges say this - it could be a misdemeanor shoplifting from three years ago and the judge will swear he remembers it; still it never hurts to remind them]
Me: "On page five it talks about his family history. His mother's second husband was Mr. Green not Mr. Gary. As well, my client would tell you that the domestic assault against his mother in the last paragraph was actually against his mother's boyfriend - that he never attacked his mother."
"On page 8 my client would tell you that he is Christian but not actually Baptist. He thought that he had to choose a particular denomination but he wanted to make sure he was absolutely truthful to your Honor today."
"On page 11 the last paragraph states that he did not go to substance abuse programs which were required by his juvenile probation officer. Mr Smith would tell you that he does not remember having been required to go to any program. That doesn't mean he wasn't - just that he has no memory of it. And that's all the corrections we offer, sir."
The judge asks if either the prosecution or defense have any evidence and neither does. The he asks for argument. The prosecution waives opening. [a standard ploy in cases wherein there is no jury]
I stand up to argue:
Your honor, this is a terrible presentence report.Then the prosecutor gets his turn at the podium:
When we look at the family history we see that Mr. Smith's family life was unstable. At best his family was disinterested - at worst it was abusive.
Looking at the medical history we see that Mr. Smith suffered from manic depression, psychotic tendencies, and suicidal ideations. He's been on medications since the third grade.
I look at his record from juvenile court, and it is a significant record but what strikes me is that there is nothing that indicates that there was ever any kind of CHINS petition. Maybe that wouldn't be indicated in his record but as I look through the rest of the presentence report I don't see anything which indicates one.
When we look at his educational record, there was no specialized educational aid offered to Mr. Smith. No indication of any kind of individualized effort to help him with his needs.
Mr. Smith's entire life was a train ride, bringing him right to where he is today. He was just along for the ride. He was coming here one way or another.
He's here now and we need to take steps to try to get him off this track. This is his first stop in the adult world where there are real world consequences and we can make him take steps to help himself. We need to do this for Mr. Smith. And we need to do it for society at large, so that he can become a productive member.
Your Honor, I would ask that Mr. Smith be put on intensive probation where he can be required to undergo drug and alcohol screening, go to mental health and get some help, and be required to take his meds. If you feel that you have to give time we ask for the 7 months at the low end of the guidelines. Thank you your Honor.
Your Honor, as we look through Mr. Smith's record as a minor he has a history of violent acts, including a prior malicious wounding adjudication. He didn't make it three weeks past his 18th birthday before this happened.The Judge:
He was trespassing. He was drunk. Mr. Jones had the right to tell him to get off his property. And then he hit and injured Mr. Jones with a cement statue. Mr. Jones had to go to the hospital for treatment.
The Commonwealth thinks the sentence should be the mid-point at least but that the 1 year 3 months at the upper end of the guidelines is the proper sentence.
Mr. Smith shouldn't have been trespassing and he shouldn't have been drunk. He shouldn't even be drinking at his age. Certainly Mr. Jones had the right to not be disturbed and to tell Mr. Smith to leave his property. So Mr. Smith must receive some punishment.At this point I go into the lockup area with my client to explain what just happened. [quite often the client is too nervous, or his brain stops functioning when he hears the "I sentence you to 5 years . . ." (not hearing the "X amount of time suspended" part), or the language is above his head so you have to go back and tell him what just happened in his life]
Sadly, I agree with Mr. Lammers that Mr. Smith was destined to end up here. And, to use Mr. Lammers' train language, we should try to take steps to get him off this track. Therefore, I sentence Mr. Smith to 5 years, with 4 years and 4 months suspended for 15 years - on condition that Mr. Smith keep the peace and obey the laws of the Commonwealth and her Sister States. I order indefinite supervised probation upon his release from custody and I am recommending that it be intensive supervision. I also order $63 dollars restitution to be paid to Mr. Jones within 45 days of Mr. Smith's release from jail.
Mr. Smith, I hope we never have to meet again. Good luck.
And thus ends another sentencing hearing in the Commonwealth of Virginia.
02 January 2005
Appellate Courts
1) New York's highest appellate court has been split into factions:
3) In Iowa a judge whom the Supreme Court "retired" from the bench for alcohol problems, severe depression, and marijuana in his system will now represent indigent defendants.
4) Arkansas: If you don't sentence someone for six years an appellate court may find that you waited too long.
5) "On Oct. 25, 2000, Hunter appeared before the trial court for a motion to suppress evidence. Sankovitz denied the motion and told Hunter he was unlikely to be acquitted in the case. The judge also said if Hunter wanted to 'catch a break' there was a time for 'coming forward and admitting your guilt.'"
So, in Wisconsin the judge who's going to try your case telling you that you are probably going to lose and you need to admit your guilt isn't prejudicial or participating in the plea agreement process. Nope. Not at all. Really! I mean it! Would I lie to you?
6) D.C. Appellate: If you cannot give a good explanation for closing the street you cannot arrest someone for crossing it.
7) Arkansas: If the defense is NGRI you might want to let the defense's mental expert testify.
8) Defending the Nevada Supreme Court.
9) The prosecutor pays a witness but doesn't tell the defense. The Texas courts appellate have no problem with that but the federal supreme court does.
Gov. George Pataki's last three appointees form the conservative branch, mostly sticking together on decisions generally favorable to the governor and prosecutors. Chief Judge Judith Kaye and two appointees of Democrat former Gov. Mario Cuomo form the liberal branch. That leaves Albert Rosenblatt of Dutchess County as the primary swing vote.2) In Ohio, during a sentencing hearing it's harmless error for the prosecution to assert, without providing proof, that the defendant tried to have the complaining witness killed. [gotta wonder what constitutes harmful error]
Disagreements are on the rise.
3) In Iowa a judge whom the Supreme Court "retired" from the bench for alcohol problems, severe depression, and marijuana in his system will now represent indigent defendants.
4) Arkansas: If you don't sentence someone for six years an appellate court may find that you waited too long.
5) "On Oct. 25, 2000, Hunter appeared before the trial court for a motion to suppress evidence. Sankovitz denied the motion and told Hunter he was unlikely to be acquitted in the case. The judge also said if Hunter wanted to 'catch a break' there was a time for 'coming forward and admitting your guilt.'"
So, in Wisconsin the judge who's going to try your case telling you that you are probably going to lose and you need to admit your guilt isn't prejudicial or participating in the plea agreement process. Nope. Not at all. Really! I mean it! Would I lie to you?
6) D.C. Appellate: If you cannot give a good explanation for closing the street you cannot arrest someone for crossing it.
7) Arkansas: If the defense is NGRI you might want to let the defense's mental expert testify.
8) Defending the Nevada Supreme Court.
9) The prosecutor pays a witness but doesn't tell the defense. The Texas courts appellate have no problem with that but the federal supreme court does.
01 January 2005
Cha-Cha-Cha-Changes
Well, I've revamped some of the links.
(1) To begin with after Gus dared to assert that his spelling for the name of his blog was correct, he seems to have been asserting that I made an error in spelling his blog's name in the link. Now, we all know that I would never make such a mistake - just look, it's speeled exactly rite. And shame on any of you that goes back and checks to see if that's the way it was spelled on previous month's lists - HOW DARE YOU FACT CHECK ME? Who do you think I am? Some nobody who works for CBS?
[If I can't indulge a god complex on my personal little bit of the web, where can I? I'm not a judge (yet).]
(2) 4 new blogs have been added to my "Worth Reading" section: Kirby's Reports, Adam Smith Esq., On Point, & Tales of a Wandering Mind.
(3) Added 2 blogs to my "Daily List" section. The first is Diggers Realm. Apparently, in some unknown manner I was the 16th most helpful blog during the last month; not sure why but glad to be of service. (And, yes she's hot.)
The other is All Deliberate Speed. It's a long time favorite which had bit the dust due to my 30 day policy (no posts - yer gone). Glad to see it back up and running.
(4) There's a new addition to my Criminal Law category: one man's view on life, law, love. It's under One Man's View (sorry the name is just a tad too long). The author is an attorney from California. I wouldn't normally link to someone's work website but at least 3 of those ladies are worth a second or third look (I ain't saying which ones - for all I know one's a wife or daughter). I'm sure the office does outstanding work but it might just be worth going by to do a little sight seeing.
(5) There are 4 new additions to "Old Dominion Blogs": Commonwealth Commonsense, Sic Semper Tyrannis, my own backyard, & The Virginia Progressive.
Some sites are gone via the 30 day policy and some moved around but ya'll can figure that out for yourselves. I hope the changes provide you with some interesting reading material.
(1) To begin with after Gus dared to assert that his spelling for the name of his blog was correct, he seems to have been asserting that I made an error in spelling his blog's name in the link. Now, we all know that I would never make such a mistake - just look, it's speeled exactly rite. And shame on any of you that goes back and checks to see if that's the way it was spelled on previous month's lists - HOW DARE YOU FACT CHECK ME? Who do you think I am? Some nobody who works for CBS?
[If I can't indulge a god complex on my personal little bit of the web, where can I? I'm not a judge (yet).]
(2) 4 new blogs have been added to my "Worth Reading" section: Kirby's Reports, Adam Smith Esq., On Point, & Tales of a Wandering Mind.
(3) Added 2 blogs to my "Daily List" section. The first is Diggers Realm. Apparently, in some unknown manner I was the 16th most helpful blog during the last month; not sure why but glad to be of service. (And, yes she's hot.)
The other is All Deliberate Speed. It's a long time favorite which had bit the dust due to my 30 day policy (no posts - yer gone). Glad to see it back up and running.
(4) There's a new addition to my Criminal Law category: one man's view on life, law, love. It's under One Man's View (sorry the name is just a tad too long). The author is an attorney from California. I wouldn't normally link to someone's work website but at least 3 of those ladies are worth a second or third look (I ain't saying which ones - for all I know one's a wife or daughter). I'm sure the office does outstanding work but it might just be worth going by to do a little sight seeing.
(5) There are 4 new additions to "Old Dominion Blogs": Commonwealth Commonsense, Sic Semper Tyrannis, my own backyard, & The Virginia Progressive.
Some sites are gone via the 30 day policy and some moved around but ya'll can figure that out for yourselves. I hope the changes provide you with some interesting reading material.
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