16 August 2007
British Perception of US Prisons
They ain't good.
Of course, judging from the comments, they don't seem too happy about the way things work there either.
Of course, judging from the comments, they don't seem too happy about the way things work there either.
$104 Isn't Enough
If you want me to take the chance that I'm going to flush my whole legal career down the drain you're going to have to give me more money than $104 to dismiss your case.
Comic Book Nudity
Having read a few comic books, or as those who don't want to look immature label them "graphic novels", in my life, I gotta say, it is usually pretty clear which ones would be appropriate to hand out to trick-or-treaters.
He Said What About His Client?
I always tried my best not to tell the judge exactly what the nature of the conflict I had with a client was. Most judges were pretty good about it; if you weren't asking to be removed from cases every other week they didn't press. I don't think I ever said something like this where the press could hear it.
The Pro Se Bar
I think the most painful moments I've seen in court have been sitting in a courtroom waiting for a pro se defendant to finish. Usually, what should have been a 5 minute hearing drags on and on and on . . .
So, I understand this sentiment.
I do have to say that I have seen some pro se defendant's who do okay in court, but that's usually a sign that they have been there enough times to know criminal procedure. Although, that doesn't seem to help with the guys in prison. They get a field trip every time they come to court, so even the intelligent ones who know what they are doing file tons of non-pertinent motions (usually because they want to re-try the case that put them in prison).
So, I understand this sentiment.
I do have to say that I have seen some pro se defendant's who do okay in court, but that's usually a sign that they have been there enough times to know criminal procedure. Although, that doesn't seem to help with the guys in prison. They get a field trip every time they come to court, so even the intelligent ones who know what they are doing file tons of non-pertinent motions (usually because they want to re-try the case that put them in prison).
Ohio: False Report and the Conviction Based Upon It
Can a woman be coinvicted of a false report and a man be convicted upon the facts alleged in the false report?
In Ohio they can.
In Ohio they can.
Why Can't You Work for Free?
Brian tries to explain why he cannot work without getting paid.
Sorry, but I doubt it'll work for you.
Sorry, but I doubt it'll work for you.
Survival Training the Hard Way
Think the 10 deputies left out overnight while they were hunting pot in the woods might have been on the sheriff's *!@#@ list?
They're 18+
I say again: If they are 18 they are the ones breaking the law, not their parents, not their school administrators, not their fairy godfathers.
Of course, this doesn't apply if the school itself is having keggers without carding or something similar, but leave the hazing liability between the school and the insurance company. Or, better yet, impose a rule that an academic institution is not responsible for the acts of adult students either civily or criminally unless it actively drew the student into that activity (passive non-interference with acts between adults should not be enough).
Of course, this doesn't apply if the school itself is having keggers without carding or something similar, but leave the hazing liability between the school and the insurance company. Or, better yet, impose a rule that an academic institution is not responsible for the acts of adult students either civily or criminally unless it actively drew the student into that activity (passive non-interference with acts between adults should not be enough).
Prison Instead of Mental Institutes
Yep, anybody who has done this work for a while can tell you that there are a lot of mentally disabled people in jails or prisons. Oh, they know the difference between right and wrong and are technically competent, but that doesn't mean they don't have serious mental problems.
Whites, Black, the Death Penalty, and the Press
There has been concern raised over how the press is covering a white family's murder as opposed to the same events happening to black families.
It's true; we've all seen the press do it before. I'm not sure a judge would allow that as mitigation though.
It's true; we've all seen the press do it before. I'm not sure a judge would allow that as mitigation though.
15 August 2007
In the News
1) "There are no three fat guys, one with a beard, floating around in a stationwagon attacking young maidens in Morrinsville."
2) "DA Wants to Deter Crime" - As opposed to the rest of us in prosecutor offices, who want to see it run rampant and out of control.
3) Castrating your ex's cat with a boxcutter - eye for an eye time?
4) So, your dealer sold you imitation cocaine. What can you do? Well, you could call the police.
5) Hell hath no fury like your angry wife who knows about the stolen $180,000 Aston Martin in your garage.
6) Pig Latin is not going to keep the prison guards from understanding your phone conversation.
2) "DA Wants to Deter Crime" - As opposed to the rest of us in prosecutor offices, who want to see it run rampant and out of control.
3) Castrating your ex's cat with a boxcutter - eye for an eye time?
4) So, your dealer sold you imitation cocaine. What can you do? Well, you could call the police.
5) Hell hath no fury like your angry wife who knows about the stolen $180,000 Aston Martin in your garage.
6) Pig Latin is not going to keep the prison guards from understanding your phone conversation.
At Least I'm the Senior Partner
Proof positive of what can go wrong when you put your picture up on your blog . . .
14 August 2007
No Matter How Long You Practice, There's Always Something to Learn
As long as I've been practicing, judges have been reducing DUI's to reckless driving. In fact, most of the time when the judge does that it's considered a victory for the defendant. Imagine my surprise when I found out last week that judges are banned from doing that.
Offender was originally charged with DUID. However, the under the influence part was unprovable. Since there was apparently enough evidence to prove driving "while in too bad a condition to drive", the judge reduced the charge to reckless and convicted. All of this is stuff I learn from the court record as I did not try the original charge.
Then Offender appealed in order to get his guaranteed de novo trial. We come to court on his misdemeanor appeal and his attorney tells me that the judge couldn't do that - it's not allowed. I'm skeptical, because I've seen it done as long as I've practiced. So, I go look it up and, whatdoyaknow, defense counsel was correct.
It's all based on Virginia code sec. 19.2-294.1:
In 2004, the General Assembly limited this exception to only the general reckless driving statute and therefore left us in a position where a DUI could be charged with the remaining reckless driving statutes:
So, I ended up making a motion for nolle prosequi so that the officer could go swear out the proper warrant and we can all come back to court in a month or so and do it in a procedurally correct manner.
After having looked at it for a couple days, I'm not sure I had to do that. It was the procedurally safe way to handle the situation, but I think the 2004 amendment might have actually trimmed the reckless part of the statute to the point that it now is a lesser included in DUI. The only thing that concerns me is that some of the Appellate Court cases, in order to stretch to find different elements, have stated in obiter ditcum that DUI's can occur without reckless driving. I think that is non-binding and just plain bad logic. Of course, driving under the influence of intoxicants is reckless - that's why there's all that evidence introduced at trial about how the offender's coordination was screwed up.
Hmm . . . it'll be interesting to see if anyone fights this fight in the future.
Offender was originally charged with DUID. However, the under the influence part was unprovable. Since there was apparently enough evidence to prove driving "while in too bad a condition to drive", the judge reduced the charge to reckless and convicted. All of this is stuff I learn from the court record as I did not try the original charge.
Then Offender appealed in order to get his guaranteed de novo trial. We come to court on his misdemeanor appeal and his attorney tells me that the judge couldn't do that - it's not allowed. I'm skeptical, because I've seen it done as long as I've practiced. So, I go look it up and, whatdoyaknow, defense counsel was correct.
It's all based on Virginia code sec. 19.2-294.1:
Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and with reckless driving in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852, growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.Apparently, sometime in the forgotten primordial ages of Virginia courts, the Virginia Supreme Court ruled that a person could be convicted of both reckless driving and DUI at the same time because they have different elements. The General Assembly took exception to this and passed 19.2-294.1 (although, until 2004 it just said reckless driving and did not state a specific statute). Thereafter, the Courts Appellate Virginian did not admit theoretical defeat while conceding legal defeat. They decided it was the act of driving which was the common act which tied the two charges together under the General Assembly's statute, but that they still had separate elements. Which means that reckless was still not, despite the General Assembly's apparent attempt to make it so, a lesser included in DUI.
In 2004, the General Assembly limited this exception to only the general reckless driving statute and therefore left us in a position where a DUI could be charged with the remaining reckless driving statutes:
46.2-853 Bad BrakesOf course, the judge did not reduce the DUID to one of these, and clearly couldn't because each has it's own separate element to prove which would not be a part of DUI.
46.2-854 Passing on Curve or Crest of Hill
46.2-855 Driving with View Obscured
46.2-856 Passing Two Vehicles at Once
46.2-857 Driving Two Cars Side-by-Side in One Lane
46.2-858 Passing at a Railroad Crossing
46.2-859 Passing a Stopped School Bus
46.2-860 Failing to Signal
46.2-861 Driving too Fast For Conditions
46.2-862 Driving 20 mph over the Speed Limit or 80 mph
46.2-863 Failure to Yield Right of Way
46.2-865 Racing
So, I ended up making a motion for nolle prosequi so that the officer could go swear out the proper warrant and we can all come back to court in a month or so and do it in a procedurally correct manner.
After having looked at it for a couple days, I'm not sure I had to do that. It was the procedurally safe way to handle the situation, but I think the 2004 amendment might have actually trimmed the reckless part of the statute to the point that it now is a lesser included in DUI. The only thing that concerns me is that some of the Appellate Court cases, in order to stretch to find different elements, have stated in obiter ditcum that DUI's can occur without reckless driving. I think that is non-binding and just plain bad logic. Of course, driving under the influence of intoxicants is reckless - that's why there's all that evidence introduced at trial about how the offender's coordination was screwed up.
Hmm . . . it'll be interesting to see if anyone fights this fight in the future.
13 August 2007
Dismissed with Prejudice
Times were, everyone in Virginia understood that if a charge was "nol prossed" (motion for nolle prosequi) it could come back, but if it was dismissed it was gone forever. Of course, this was a different terminology than the feds use and apparently it confused some people (after all, how many of us were taught the fed rules of procedure at law school rather than the proper common law ones which Virginia, that rock of the common law, has maintained?).
So now we have a statute setting out trial procedure as to a dismissal:
§ 19.2-265.6. Effect of dismissal of criminal charges.
No dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice.
(2007, c. 419.)
Why did this change come about? Maybe it's because the General Assembly meets every year and doesn't have enough important work to fill its time with. Maybe it's because someone lost a case when they said motion to dismiss rather than motion to nol pross. Whatever the cause, it confuses judges if you say it. Go on, I dare you. Walk up to a bench in the Commonwealth and ask for a dismissal with prejudice. The judge and attorney on the other side will give you the strangest looks . . .
So now we have a statute setting out trial procedure as to a dismissal:
§ 19.2-265.6. Effect of dismissal of criminal charges.
No dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice.
(2007, c. 419.)
Why did this change come about? Maybe it's because the General Assembly meets every year and doesn't have enough important work to fill its time with. Maybe it's because someone lost a case when they said motion to dismiss rather than motion to nol pross. Whatever the cause, it confuses judges if you say it. Go on, I dare you. Walk up to a bench in the Commonwealth and ask for a dismissal with prejudice. The judge and attorney on the other side will give you the strangest looks . . .
10 August 2007
The Cubs are the Cubs Again (in Japan)
A Japanese court has decided that the Cubs can use their symbol in Japan.
Thank goodness! I've been losing sleep wondering what was going to happen.
Thank goodness! I've been losing sleep wondering what was going to happen.
Yes, I changed the links
And I'll probably be doing some more changes before I'm through. The blogs I've linked to as prosecutors aren't all posting about criminal law, but not many prosecutors are so I included them on the hope that every so often there'd be something (Brian Patton, c'mon down, you're the next contestant on the Post is Right).
I did away with the daily read section. The blogs I most often read are at the top of the section they're now in. Most of the time I'm reading by rss feed / My Yahoo! now anyway.
I pulled the BigWig blogs out of the long list not so much because they are the BigWigs, but because they are consistently publishing with good quality.
A number of blogs in the long list appear to have faded away. I don't have time now; I'll have to go in and fix them soon.
I did away with the daily read section. The blogs I most often read are at the top of the section they're now in. Most of the time I'm reading by rss feed / My Yahoo! now anyway.
I pulled the BigWig blogs out of the long list not so much because they are the BigWigs, but because they are consistently publishing with good quality.
A number of blogs in the long list appear to have faded away. I don't have time now; I'll have to go in and fix them soon.
09 August 2007
Around the Web
1) Will the 4th Circuit become a bastion of liberality?
2) Video of an offender trying to stab the officer who is searching him, at the station. BTW: No, I can't translate the language they're speaking - all I know is it ain't Merican.
3) Most juveniles adjudicated delinquent because they are not innocent of a felony (pretty sure that's the right language) stop committing crimes before they hit their 30's.
Gotta say I don't find that in the least bit shocking. Common experience tells us that most males calm down sometime in their mid to late 20's. If we really wanted to cut the crime rate we'd just either arrest all males at 16 and hold them until 28 or force every male to join a different structured environment (like, oh, the military) for 10 years at age 17. The crime rate would plummet.
4) An officer at his first murder scene.
5) The "Hello Kitty Pink Armband" punishment for bad officers.
6) We don't really have expungement here in Virgina (you can expunge things you've not been convicted of after a year). However, many States do. The question is whether it still does what it's supposed to.
7) 30 years for a white collar crime? What'd she do, steal the Liberty Bell?
8) What happens when a prosecutor is sleeping with a defendant's mother?
9) What? It costs money to put people in prison?
10) Ummmmm . . . Mark, we do have jury sentencing in Virginia. However, we never gave them the power to impose probation to begin with.
11) States have the ability to opt in to rocket habeases?
12) FBI stoners?
13) Claiming police officers raped you is hard without evidence and when the officers are being tracked in a different place at the time.
14) Parakeet killer gets 30 days.
2) Video of an offender trying to stab the officer who is searching him, at the station. BTW: No, I can't translate the language they're speaking - all I know is it ain't Merican.
3) Most juveniles adjudicated delinquent because they are not innocent of a felony (pretty sure that's the right language) stop committing crimes before they hit their 30's.
Gotta say I don't find that in the least bit shocking. Common experience tells us that most males calm down sometime in their mid to late 20's. If we really wanted to cut the crime rate we'd just either arrest all males at 16 and hold them until 28 or force every male to join a different structured environment (like, oh, the military) for 10 years at age 17. The crime rate would plummet.
4) An officer at his first murder scene.
5) The "Hello Kitty Pink Armband" punishment for bad officers.
6) We don't really have expungement here in Virgina (you can expunge things you've not been convicted of after a year). However, many States do. The question is whether it still does what it's supposed to.
7) 30 years for a white collar crime? What'd she do, steal the Liberty Bell?
8) What happens when a prosecutor is sleeping with a defendant's mother?
9) What? It costs money to put people in prison?
10) Ummmmm . . . Mark, we do have jury sentencing in Virginia. However, we never gave them the power to impose probation to begin with.
11) States have the ability to opt in to rocket habeases?
12) FBI stoners?
13) Claiming police officers raped you is hard without evidence and when the officers are being tracked in a different place at the time.
14) Parakeet killer gets 30 days.
08 August 2007
A W&L LawProf Blogging
Whadoyaknow!?! There's a law professor from good old W&L who's blogging over at Concurring Opinions (even if they forgot her for a while).
Melissa A. Waters wasn't at W&L Law when I was getting learned there. OMG, look at that CV. That would give anybody an inferiority complex. It makes my resume look kinda pitiful. And, believe you me, I went thru and tried to make my resume as impressive as possible before I posted it after that; it still pales in comparison.
She looks like an interesting person and probably a great professor. I'd say that I'd like to meet her, but for two things. First, looking at her record, I suspect she is several orders of magnitude intellectually above this poor bumpkin; I'd hate to make her have to spend several painful minutes trying to being polite while I was saying things which roughly translated as "UG! Ken like law. UG! Ken am good at it" ('cuz, ya know every guy has to puff his chest in female company). Second, considering my life history and her works, I suspect that if we were in the same room for too long one of us might spontaneously combust. Of course, assuming God is just, that probably means the short, round, bispectacled guy with the shaved head would go boom. And, if I blew up all my creditors would be orphaned. Can't have that.
Melissa A. Waters wasn't at W&L Law when I was getting learned there. OMG, look at that CV. That would give anybody an inferiority complex. It makes my resume look kinda pitiful. And, believe you me, I went thru and tried to make my resume as impressive as possible before I posted it after that; it still pales in comparison.
She looks like an interesting person and probably a great professor. I'd say that I'd like to meet her, but for two things. First, looking at her record, I suspect she is several orders of magnitude intellectually above this poor bumpkin; I'd hate to make her have to spend several painful minutes trying to being polite while I was saying things which roughly translated as "UG! Ken like law. UG! Ken am good at it" ('cuz, ya know every guy has to puff his chest in female company). Second, considering my life history and her works, I suspect that if we were in the same room for too long one of us might spontaneously combust. Of course, assuming God is just, that probably means the short, round, bispectacled guy with the shaved head would go boom. And, if I blew up all my creditors would be orphaned. Can't have that.
07 August 2007
So, How Should We Select a Judge?
A while back, SW Va Law quoted a popularly elected judge saying that he makes judicial decisions not because they're right, but because they will get him re-elected.
Of course, that's disturbing. However, if we assume that this is a normal pattern of action we must assume it in any system wherein the judges are periodically reviewed. In Virginia we have our judges selected by the General Assembly. If a popularly elected person is affected by what the populous thinks, a judge chosen by the general assembly would be affected by those winds which blow from the legislature as well. I believe I saw this a few years back when a judge was having a terrible time getting re-appointed because he was viewed as being too lenient on DUI's. The judges were following that closely and, although it may have just been my impression, everybody tightened up. Was that the will of the people? I'm not so certain. I think the problem with judges appointed by the legislature will always be that legislative bodies are disproportionately influenced by lobbying groups and therefore pass on that disproportionate influence to the judges they choose and periodically re-affirm.
Perhaps the biggest flaw in the legislative appointment/re-appointment system is that it can cause judges who are entirely out of touch with the locality to become the judge. In Virginia, depending on what part of the Commonwealth is dominant at the moment, this can mean the rest of the Commonwealth imposing conservative judges on the People's Republic of Northern Virginia or Northern Virginia imposing liberal judges on us unheeled barbarians in the hinterlands.
So, what's the solution? I'm not certain there is one. Every system I've seen has flaws. Gubernatorial appointment and reappointment has almost exactly the same flaws as legislative appointments. Some are enamored with the retention system, but, in my view that system pretty much does away with any accountability. The only way the judge would ever be held "accountable" is if a big case is decided close enough to election time for press coverage to linger in the minds of the people. I'm also not particularly thrilled by the idea of committees choosing the candidates. These committees will be dominated by one group or another and reflect that group's view (pick a group: ABA members, or BigLaw types, or local bigwigs, etc.)
That all said, how do I think that judges should be chosen? Well, it's an imperfect, incomplete thought, but maybe something like this:
Supreme Court Justice: These should have life tenure to remove them as much as possible from political influence. A committee composed equally of members appointed by Bars which are non-general in nature (prosecutor bar, defense attorney bar, plaintiff's bar, insurance defense bar, etc. - only bars concerning a specific area of State law) and that committee will report 4 people to the General Assembly. The General Assembly reports one of these people to the governor who has the option of approving or denying him and then the General Assembly can override that with a 2/3 vote.
Appellate Court Judge: These should have a 10 year, renewable tenure. Nominations should be tied to a region of the Commonwealth. Initially, they would be offered by the governor and approved by the General Assembly. At time for re-appointment 2/3 of the General Assembly must vote to remove the judge from office.
Circuit Court: 10 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit. Selected initially by the Senate. At time for re-appointment the majority of the General Assembly may vote to remove from office.
General District Court: 6 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit (in Virginia district court judges ride the same circuit as the circuit court judges). Initially selected by House of Delegates. At time for reappointment the majority of the General Assembly may vote to remove them from office.
I think this sort of system would balance the influences on the courts by various political entities. I also think it puts people in the appellate courts without too much fear for their jobs so that they can make decisions as a truly independent 3d branch.
Now, all I have to do is figure out how to get Virginia to let me single handedly rewrite the Commonwealth's constitution . . .
Of course, that's disturbing. However, if we assume that this is a normal pattern of action we must assume it in any system wherein the judges are periodically reviewed. In Virginia we have our judges selected by the General Assembly. If a popularly elected person is affected by what the populous thinks, a judge chosen by the general assembly would be affected by those winds which blow from the legislature as well. I believe I saw this a few years back when a judge was having a terrible time getting re-appointed because he was viewed as being too lenient on DUI's. The judges were following that closely and, although it may have just been my impression, everybody tightened up. Was that the will of the people? I'm not so certain. I think the problem with judges appointed by the legislature will always be that legislative bodies are disproportionately influenced by lobbying groups and therefore pass on that disproportionate influence to the judges they choose and periodically re-affirm.
Perhaps the biggest flaw in the legislative appointment/re-appointment system is that it can cause judges who are entirely out of touch with the locality to become the judge. In Virginia, depending on what part of the Commonwealth is dominant at the moment, this can mean the rest of the Commonwealth imposing conservative judges on the People's Republic of Northern Virginia or Northern Virginia imposing liberal judges on us unheeled barbarians in the hinterlands.
So, what's the solution? I'm not certain there is one. Every system I've seen has flaws. Gubernatorial appointment and reappointment has almost exactly the same flaws as legislative appointments. Some are enamored with the retention system, but, in my view that system pretty much does away with any accountability. The only way the judge would ever be held "accountable" is if a big case is decided close enough to election time for press coverage to linger in the minds of the people. I'm also not particularly thrilled by the idea of committees choosing the candidates. These committees will be dominated by one group or another and reflect that group's view (pick a group: ABA members, or BigLaw types, or local bigwigs, etc.)
That all said, how do I think that judges should be chosen? Well, it's an imperfect, incomplete thought, but maybe something like this:
Supreme Court Justice: These should have life tenure to remove them as much as possible from political influence. A committee composed equally of members appointed by Bars which are non-general in nature (prosecutor bar, defense attorney bar, plaintiff's bar, insurance defense bar, etc. - only bars concerning a specific area of State law) and that committee will report 4 people to the General Assembly. The General Assembly reports one of these people to the governor who has the option of approving or denying him and then the General Assembly can override that with a 2/3 vote.
Appellate Court Judge: These should have a 10 year, renewable tenure. Nominations should be tied to a region of the Commonwealth. Initially, they would be offered by the governor and approved by the General Assembly. At time for re-appointment 2/3 of the General Assembly must vote to remove the judge from office.
Circuit Court: 10 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit. Selected initially by the Senate. At time for re-appointment the majority of the General Assembly may vote to remove from office.
General District Court: 6 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit (in Virginia district court judges ride the same circuit as the circuit court judges). Initially selected by House of Delegates. At time for reappointment the majority of the General Assembly may vote to remove them from office.
I think this sort of system would balance the influences on the courts by various political entities. I also think it puts people in the appellate courts without too much fear for their jobs so that they can make decisions as a truly independent 3d branch.
Now, all I have to do is figure out how to get Virginia to let me single handedly rewrite the Commonwealth's constitution . . .
06 August 2007
Civil Penalties for Driving Offenses
When the new "civil" fines were added by the General Assembly this notice popped up all over the courthouse (this one was in the elevator).
And now, a judge in Henrico has been the first to find these fines unconstitutional. The case is Commonwealth v. Price.
It was found unconstitutional in Richmond too.
03 August 2007
02 August 2007
Prosecutors on the Web
Way back when I started my blog I think there were maybe two blogs dealing with criminal law: Crimlaw and Talk Left (which even then was evolving into a political blog). At the time most of the interesting blogs seemed to be done by clerks or students. Of course, over the years things evolved. There are now quite a few criminal law professors and defense attorneys in the blawgosphere. However, there is still one group you don't see too many of: prosecutors. Having worked here for a little less than a year, I think I can see why that is. It's interesting how much of the work I do is prospective in nature or touches on political areas (there's lots of politics in a county with a county government, an independent city, and 5 independent towns). All of this is basically off limits, for fairly obvious reasons.
I am in the unique position of having been hired by a Commonwealth Attorney who had full knowledge of CrimLaw and being retained by a Commonwealth Attorney who also has full knowledge and, while I don't think he reads this very often, has said he will not interfere with CrimLaw. I appreciate the trust. However, I doubt that I would have started this if I had been employed in a prosecutor's office at the time. The prospect of having a "macaca" moment would have probably loomed too large.
With all this in mind, I thought I'd look set out a list of current prosecutors whom I know to be blogging:
Brian Patton - Author: Brian Patton - Mostly a political blog, but Brian's a brand spanking new prosecutor now. Welcome to the other side of the bench.
Seeking Justice - Author: Tom McKenna - Politics, Religion, and the Law. May be dead or dying since Tom has not posted in almost a month.
Judging Crimes - Author: Joel Jacobsen - The point of view of a government appellate lawyer. Technically, he works for the Attorney General, but it's still criminal law advocacy from this side of the bench so I include him.
Issues and Holdings in New Mexico Law - Author: Kirk Chavez - A fairly new blawg which is concentrating on the holdings of New Mexico appellate courts. Well written.
If anybody knows of any others leave me a comment or drop me an e-mail.
I am in the unique position of having been hired by a Commonwealth Attorney who had full knowledge of CrimLaw and being retained by a Commonwealth Attorney who also has full knowledge and, while I don't think he reads this very often, has said he will not interfere with CrimLaw. I appreciate the trust. However, I doubt that I would have started this if I had been employed in a prosecutor's office at the time. The prospect of having a "macaca" moment would have probably loomed too large.
With all this in mind, I thought I'd look set out a list of current prosecutors whom I know to be blogging:
Brian Patton - Author: Brian Patton - Mostly a political blog, but Brian's a brand spanking new prosecutor now. Welcome to the other side of the bench.
Seeking Justice - Author: Tom McKenna - Politics, Religion, and the Law. May be dead or dying since Tom has not posted in almost a month.
Judging Crimes - Author: Joel Jacobsen - The point of view of a government appellate lawyer. Technically, he works for the Attorney General, but it's still criminal law advocacy from this side of the bench so I include him.
Issues and Holdings in New Mexico Law - Author: Kirk Chavez - A fairly new blawg which is concentrating on the holdings of New Mexico appellate courts. Well written.
If anybody knows of any others leave me a comment or drop me an e-mail.
Reactions to the New Layout
Well, actually they're reactions to the new picture . . .
I just checked in on your blog- and you've got a real Kevin Spacey/Lex Luthor thing going on... looks cool. (Steve)
I love the chrome dome look. I think of three people when I look at you: G. Gordon Liddy, Steve Benjamin, and Lex Luther. (Jason)
I guess they're better comments than the first thought which popped into my head when I shaved it: "Gee, Brain, what are we going to do tonight?"
I just checked in on your blog- and you've got a real Kevin Spacey/Lex Luthor thing going on... looks cool. (Steve)
I love the chrome dome look. I think of three people when I look at you: G. Gordon Liddy, Steve Benjamin, and Lex Luther. (Jason)
I guess they're better comments than the first thought which popped into my head when I shaved it: "Gee, Brain, what are we going to do tonight?"
01 August 2007
Reasonable Doubt, The Virginia Version
A couple days back Mark was writing about the ways that different State courts handle jury instructions as to the definition of reasonable doubt. Looking at this, I thought I'd post the usual instruction given in Virginia jury trials.
The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt. You shall not speculate or go outside of the evidence to consider what you think might have taken place, but you are to confine your consideration to the evidence introduced by the Commonwealth and the defense and unless you believe, upon a consideration of all the evidence before you, that guilt of the defendant has been proved beyond a reasonable doubt as to every material and necessary element of the offense charged against him, then you shall find the defendant not guilty.
The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt. You must limit your consideration to the evidence introduced, and you are not to go outside the evidence to hunt up doubts, nor must you entertain doubts that are speculative or conjectural. If, upon a consideration of all the evidence, you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you shall find him guilty.
If you read through the instruction, you won't find a definition of "reasonable doubt." It bounces all around it, bracketing it on one side by stating it isn't a lower level of proof and on the other by stating that it isn't absolute, God given, unshakable certitude. It's something of a definition in the negative.
To my knowledge, the Virginia appellate courts haven't banned positive definitions of reasonable doubt. However, they have strongly discouraged them:
However, in the end I'm not sure anything is gained if the positive instruction is offered rather than the negative one. Perforce, both are vague and neither will ever be entirely satisfactory. I didn't like the current instruction as a defense attorney and I don't like it as a prosecutor either; yet, I don't see myself as being happy if I had to use the instruction give in the case above either. In the end, with the vagueness involved in either instruction, it is the jurors who must go back in the back room and decide for themselves where they will draw the line as to reasonable doubt.
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The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt. You shall not speculate or go outside of the evidence to consider what you think might have taken place, but you are to confine your consideration to the evidence introduced by the Commonwealth and the defense and unless you believe, upon a consideration of all the evidence before you, that guilt of the defendant has been proved beyond a reasonable doubt as to every material and necessary element of the offense charged against him, then you shall find the defendant not guilty.
The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt. You must limit your consideration to the evidence introduced, and you are not to go outside the evidence to hunt up doubts, nor must you entertain doubts that are speculative or conjectural. If, upon a consideration of all the evidence, you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you shall find him guilty.
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If you read through the instruction, you won't find a definition of "reasonable doubt." It bounces all around it, bracketing it on one side by stating it isn't a lower level of proof and on the other by stating that it isn't absolute, God given, unshakable certitude. It's something of a definition in the negative.
To my knowledge, the Virginia appellate courts haven't banned positive definitions of reasonable doubt. However, they have strongly discouraged them:
It should be remembered, however, that on numerous occasions we have stated that instructions attempting to define reasonable doubt should be discouraged as it is highly probable that any definition devised would be less illuminating than the expression itself.In that case the court was refusing to overturn based upon a jury instruction defining beyond a reasonable doubt as "an abiding conviction of the truth of the charge" (appellant claimed it should have been "an abiding conviction to a moral certainty of the guilt of the accused"). This case is cited in more modern times as standing for the proposition that
Strawderman v. Commonwealth, 1959 Va. (no. 4928)
We expect jurors to understand the meaning of "reasonable doubt."So, I guess that technically I could offer an instruction that positively defined reasonable doubt and if I got it past the trial judge it would stand on appeal. However, I suspect the older judges would shoot me down because they remember the case law and the younger judges would shoot me down because they are all lectured half to death when they go to "judge school" about the evils of departing from the instructions given in the model book, no matter how many authorities a party can cite for an instruction (which is clearly wrong and I wish they would stop telling judges that - even the model jury instructions decry themselves as stand alone authority).
Shaik v. Commonwealth, 2005 Va. App. (no. 2614-03-4)
However, in the end I'm not sure anything is gained if the positive instruction is offered rather than the negative one. Perforce, both are vague and neither will ever be entirely satisfactory. I didn't like the current instruction as a defense attorney and I don't like it as a prosecutor either; yet, I don't see myself as being happy if I had to use the instruction give in the case above either. In the end, with the vagueness involved in either instruction, it is the jurors who must go back in the back room and decide for themselves where they will draw the line as to reasonable doubt.
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