1% Motorcycle Clubs: Under and Alone

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate this book a 3.6. It's solid, interesting, and informative.

Once upon a time the Mongols MC was became big and violent enough that the federal government decided something had to be done. That something, or rather someone, was William Queen. His job was to infiltrate the Mongols and help bring them down from the inside.

Under and Alone: The True Story of the Undercover Agent Who Infiltrated America's Most Violent Outlaw Motorcycle Gang, is another book which I listened to via audiobook. It's an anecdotal / informative book which has as its main draw entrée into a world which few of us will ever see, the life of a 1% gang.

It's interesting to see how well the gang is actually run and held together. For instance, we are told it has a constitution and that in the late 90's the entire MC decided that they weren't going to beat “Prospects” (new members) anymore and that the rule was mainly followed (except by the one member who was supposed to enforce it throughout the various chapters of the club).

Queen makes contact and enters the gang through the San Fernando chapter. He rises up, becoming a prospect, a fully patched member, and finally an officer. Along the way, we get a feeling for the brotherhood which the members share, the danger they are to anyone who crosses them, their conflicts with Hells Angels, and the constant drug use. I'm not sure if the chapter Queen was in was an average chapter. The book makes it seem to be barely holding together with motorcycles that were falling apart and members not having the werewithall to do much besides hang out. It taxes there very fiber to make the cross country trips required by the mother chapter. In fact, I found myself wondering more than once whether the reason that Queen rose as far as he did in the three years he was under was because he was the only one who had his stuff together. In fact, we're lucky that Queen's on our side because if he had embraced the club entirely he might have led them to do a lot more damage then they were able.

It was an interesting listen. I recommend it to anyone interested in this genre as well as anyone who wants a primer on how 1% gangs work.

You Get the Murder Gene from Your Mother

But apparently it requires you to be a male and environmental activation as a youth:

Gang Leader for a Day: A Rogue Sociologist Takes to the Streets

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate this book a 3.7. It's a fascinating look at how those whom we see in court day after day actually live their lives.

I first heard of Sudhir Venkatesh when I was watching a TED video about Freakonomics and the speaker told how Sudhir, as a brand new sociology grad student and someone entirely ignorant of how things worked in the Chicago projects, walked into the middle of a project high rise, got abducted by a gang, and then spent the rest of his grad school career exploring the connections he built through that abduction.

Gang Leader for a Day tells us the rest of the story and it is fascinating. I listened to it as an audio book, but I suspect it's just as good as a read. It starts with a rather naive middle class kid who didn't know any better than to walk into the middle of the projects. From there, we go with Sudhir as he gets hooked up with the gang; his exploration of the gang is the largest portion of the book. From there, he works outward to explore the rest of the people living in the high rise the gang ends up at (the first building gets torn down early in the book). We meet the lady who runs the building, controlling who gets resources from the corrupt city workers and charging her own form of taxes from those running off the book businesses in the building. We meet the men and women running their own off the book businesses ranging from mechanical work to a lady running a store out of her own apartment. We even get a glimpse at how all this interacts between different buildings and gangs. Then, just as we get a fair understanding, we get to see it all come apart as Chicago decides that the high rise projects are a disaster and tears them all down, throwing everything into chaos.

It is fascinating to see how things interweave from the perspective of someone who spends so much trying to figure out how it all relates together. Particularly interesting is Sudhir's description of the businesslike manner in which a drug dealing gang operates. He gets a good view of how things work by hooking up with the gang's version of a mid-level manager who is a college grad and a trouble shooter for the gang leaders. He does everything from enforce drug quality standards to negotiating cease fires with other gangs. In the end, one gang member even gives Sudhir the books for the gang.

Those of us who work in criminal law probably have a better view of how the poorer segments of society than most. Still, it's interesting to see how the whole enviroment interacts. Of course, this is a snapshot of how things were at a particular time and place. I realize that it's different from how things are elsewhere (after all locally we deal with trailer parks, not high rise projects), but that doesn't detract a bit from the fascinating picture Mr. Venkatesh paints.

Oerheard in the Hall

Defendant: I want to have a plea agreement and probation.

Lawyer: That's not what the Commonwealth is offering. They're offering 6 years and 2 months with 6 years suspended. That's two months in jail.

Defendant: But I want a plea agreement with probation.

Lawyer: Look, you can plead straight guilty and get sentenced by the judge. You can plead not guilty and have a trial by judge or jury. Or, you can take the Commonwealth's offered plea agreement. 2 months.

Defendant: I'll plead guilty if I get a probation plea agreement.

Lawyer: That's not what the Commonwealth is offering.

Defendant: But it's only stealing and I ain't got anything else on my record.

Lawyer: It's 8 different charges of grand larceny on 8 different days. They're not going to offer you probation.

Defendant: But, . . .

Hard to Make Your Closing Thrilling When It's All About the Paperwork

Defendant lied to get benefits from a State Agency:

---

Well, ladies and gentlemen, I told you we'd get through this trial quicker than the last trial. Unfortunately, this one was more boring than most cases too. That's just the way it is in paperwork cases. You get up here and basically the only witnesses are people showing you how the paperwork is done and telling you why he did what he did.

Going all the way back to February 5, 2005, I told you I was going to have this paper for you. Feel free to go over this back in the jury room. He answers everything so that he can get benefits, including checking no on this question, which, compared to a lot of things in this 12 pages document, really isn't all that complex a question. “Have you, or a person for whom you are applying been convicted, after January 1, 2001, of snipe hunting or possession of snipe pelts?”

OK, he wants you to believe he didn't understand that question. Well, let's say he can't read too well. I don't believe that's been shown. He was reading things while on the stand and his illiteracy seems to come and go, as convenient. Still, we know better, because Pete Jones and Mary Greene got up on the stand and told us what they do for each interview. Now, I know that Mr. Smith tells you it's a ten minute thing, you're in you're out, you're done. I guess the interviewers are supposed to sit around the rest of the day drinking coffee or something, because if they only schedule 2 to 4 interviews a day I don't know what else you'd be doing. What are they filling that time with? It just doesn't make sense. Recall that they both told you the same thing. This is what we do; this is what was done with her. And they weren't in the courtroom during the others' testimony, so they couldn't hear what the other said and sit down and say exactly the same thing.

They both came up here and told you that on two dates a year apart, on 15 October 2007 Pete Jones interviewed him about the various benefits he was getting from State Agency and he answered no on the snipe hunting question. It gets put into the computer and he answers “no” again when they go over it verbally. The he has to scan it himself. All those opportunities to say “Yes, I've been convicted.”

18 November 2008, Mary Greene, same thing, they do the computer – and why would the workers cheat on the computer? It can't take that long to fill out the questions on the computer – they fill out all the computer stuff. She prints it out, goes over it with him. He again says, “No, I've not been convicted.” At least twice on that day he says, “No, I've not been convicted.”

Now, the big defense seems to be that, “They knew.” “They knew; they should have known.” Their one sheet of paper which seems to go anywhere near that is this one. This is the printout you've seen us arguing about up here. Now, this is, as it says here on the front, “Request to Be Made Payee.” This is from Federal Agency. You can tell it's from Federal Agency. Here they go on about “We are returning this application to you for your records” and telling that they store their copy electronically. This sheet was turned in the day after he told State Agency that he didn't have any snipe hunting convictions in 2006. It says that Federal Agency is giving him $176 a month from this date forward. And there's this part which says if you have any questions contact us at Federal Agency.

So, this is a Federal Agency document, which, by its own writings on page 2, was given back to Mr. Smith. Not given to anyone else at State Agency. And you'll recall that when Mary Greene was on the stand and defense counsel walked up and said “This is the form you get at the office” and she said “No” and he stopped asking questions real quick. She explained a little bit further, when prompted, that they get a different form than this. This is something that was given to Mr. Smith and if it had made its way into the State Agency's paperwork would have been stamped “received”, with a certain date, just like you see it stamped on the February 5 application Mr. Smith filled out and handed in. And, if he'd gone and gotten this copy from State Agency, like he told you today, it would have “received” such and such date on it. It doesn't - this is just his application from Federal Agency, to get money from them as well.

And, as far as it goes, for impeachment purposes, we have, March 22, 2006, the day before this application – see right here, it has March 23 – he was at State Agency and again said “Snipe Hunting Conviction: No.”

So, the whole “They knew” thing is a red herring and there are lot of red herrings, and that's [Mr. Defense Attorney]'s job. He's here to try to get his client not convicted. And he's tried to point out everything he can to get her not convicted. There's just nothing here which rebuts the paperwork and interviews.

Mr. Jones and Ms. Greene have no reason to be going after him. He couldn't state a reason that State Agency would be coming after him. No reason why Mr. Jones and Ms. Greene would be lying about it, going after him. Why would they make all this up? It doesn't make any sense at all. They're just doing their jobs and they're here today, rather than being at work dealing with their other clients because he lied. And that's it plain and simple ladies and gentlemen. There's not really a whole lot more to this. I wish I had some big rousing argument to make or statements to make.

He lied. He lied in order to get benefits. He's trying to do the same thing today by shuffling things at you like this application to Federal Agency and claiming he can't read anything despite the fact his initial application is filled out pretty well and on the other days he didn't really have to read anything. He got asked the questions. As a matter of fact, his inability to read is not what we're here for today because the two times he's charged are the times he was asked the questions by those folks and answered “No, I don't have any snipe hunting convictions.”

You'll get all this back there. Of course, here's the paper showing his snipe hunting convictions, 2003, before any of this started, before he applied at all to State Agency: felony snipe hunting.

I wish I had some sort of rousing statement to give you, like I said, but I think it's straight forward. I don't really think there's any reasonable doubt here folks. [Get charging instruction from judge] We have to prove he falsely stated in a document to get benefits from State Agency. That's what he did. He did it twice, and I ask you to find him guilty of that. Thank you ladies and gentlemen.

Someone Stole a Pyramid

Quoth the Defense Attorney

From an actual closing argument in a jury trial:

"Sherlock Holmes had an arch enemy, Professor Moriarty, who made nefarious plots and gave him someone to fight against. The Batman has the Riddler and Joker. Superman has Lex Luthor. Pity the poor County of Pitcairn; the worst person they can come up with is Jane Smith." (points dramatically at client who looks pitiful at defense table)

The Shelby County Anti-Judge Mutiny: When the Judge is Too Nice to Defendants

It's not a good thing to have a Commonwealth’s Attorney, County Attorney, Assistant County Attorney, District Court Judge get together to write an anonymous letter of complaint to the Judicial Conduct Commission stating that if the Circuit Court Judge remains on the bench "blood in the streets", because he is too lenient.

Not sure how true any of this is, but it makes me leery of running for judge in Kentucky.

Jenny Fontaine: Emotional Prosecutor

Now, here's a tactic I've not yet seen in court (not sure this one will work for us guys).

World's Most Impressive Scam Artist?

An entire room dedicated to him at the prosecutor's office and "the alleged scam actually would be his third in a decade operated over the phone from the Department of Corrections."

Who the heck is this guy? Lex Luthor? How the heck does he STILL HAVE ACCESS TO A PHONE?

Perfect Prosecutor

I assume this game doesn't exist in English. If he truly is perfect it would probably be a good training device.

How do you figure the value of an item stolen?

Baylor v. Commonwealth:

If there is no market for a used item (in this case catalytic converters) then the value of a replacement cannot be used to prove value. Value must be proven by another means and must be the value of the item at the time it was stolen. Possible methods offered are:

[T]estimony of a lay person as to the property’s fair market value, the opinion of an expert, or by traditional accounting principles, starting with the original cost of the item and then factoring in depreciation or appreciation.

Of course, the question becomes, if there is no market for the item once used and the value is the value when stolen after it has been used, is there any value if it's not the cost of replacement?

No, You Cannot Trifurcate a Virginia Trial

Elem v. Commonwealth: Defense attorneys in Virginia have been trying to figure out for a long time how to keep prior convictions out of cases in which an element of the offense is a prior conviction. No one has been able to convince Virginia courts that they should adopt the reasoning of Old Chief, so some have tried to get creative.

In Virginia all jury trials are bifurcated. In the first part the jury decides guilt or innocence. In the second part the jury decides the sentence.

Defense counsel tried for a trifurcated hearing. The first would have been to find guilt or innocence on the petit larceny. The second would have been for the jury to find whether or not there were two prior larceny convictions (necessary for the misdemeanor to be elevated to a felony). The third would have been the sentencing phase.

However, both the trial court and the appellate court denied them because such a procedure is not allowed by any legislation which has been passed by the General Assembly.

The Oxycontin Express

Watch this video. We have this problem here as well. When I was in Richmond the drugs were cocaine and heroin. Out here the problems are oxycontin, percocets, xanax, lortabs, suboxone, et al. Pain clinics, out of State doctors and pharmacies, mail order drugs - most of it starts out with veneer of legality. Watch the Kentucky mountains part of the video and that's similar - although smaller in scale - to what our drug issues are.

Probable Cause is Probable Cause - Except When It Isn't

Everyone knows of my skepticism over the magically constitutional dog-sniff which isn't a search per Illinois v. Caballes. Nevertheless, now that the premise has become law, it has to be applied.

So, a car is pulled over and has four passengers. While the stop is going on a dog is run past the vehicle. The dog alerts. So, per Caballes the officers have constitutionally valid probable cause to search the contents of the vehicle. They have the people exit and search the vehicle, finding nothing. Can the officers search the people who were in the car when the dog alerted? After all, probable cause was for contraband to be in the vehicle and the people were in the vehicle; if an officer took a purse out of the car and laid it on the ground probable cause wouldn't dissipate and the search would still be valid. Thus the search of the individuals should be valid.

Except it isn't.

In Whitehead v. Commonwealth, the Virginia Supreme Court ruled that the standard for searching people is higher than probable cause. After all, probable cause was established by the dog sniff which covered the entire area of the car and Defendant was in the car at the time. Ipso facto, there is probable cause to search Defendant (if probable cause allows the officer to search a purse in the car he should be able to search the defendant). Nevertheless, the Virginia Supreme Court has decided that for a search of a person in the car the formula is: probable cause + a particularized something more.

In order to get there the Court has to stretch its reasoning across several different cases. Here are the cases it goes through:

U.S. v. Di Re, 1948, USSC: (Severely limited by Pringle) Mere presence in the car where a crime has been committed is not probable cause if one of the other persons in the car has been specifically identified as the law breaker.

Ybarra v. Illinois, 1979, USSC: When police get a search warrant for a merchant's place of business the search warrant does not extend to whichever random customers happen to be in the place of business when the warrant is served.

Maryland v. Pringle, 2003, USSC: If contraband is inside a car an officer can reasonably infer that there is probable cause that all the occupants of the car are involved in the illegal activity because of the relatively small size of the automobile.

El-Amin v. Commonwealth, 2005, Va.SCt.: There is reasonable articulable suspicion for a Terry pat down of members of a group, in the evening in a high crime area, if a member of the group is found to have a weapon.

Of all the above, Pringle seems to be the case closest to point. It's not exactly the same because in Pringle the contraband was found first and then Pringle was arrested without particularized proof that it was his. However, since Caballes has declared dogs infallible, the same probable cause as the finding of drugs in Pringle is established by the alert of the dog.¹ Thus, the defendant in Whitehead has probable cause clearly established against him, just as the defendant in Pringle did.

Whence came the Virginia Supreme Court's reasoning? Well, it's a pretty close rationale to Di Re before it was limited by Pringle. Before the limitation, it was a fair reading of Di Re to say that it stood for the idea that being in a car in the presence of contraband or illegal activity does not mean that probable cause adheres to all individuals in the car. This is almost exactly the standard adopted by the Virginia Supreme Court. However, it is not the constitutional standard post Pringle.

Ybarra & El-Amin, neither car cases, really aren't germane to much except that the Virginia Supreme Court seems to be trying to use them as ammo in its attempt to turn back the clock and claim the old standard from Di Re. They bolster the Court's attempt to characterize this case as a "companions" case rather than a "car" case. However, it's clear that constitutional jurisprudence has set different rules for those in a car than for those an open shop or walking in public. The cases just are not on point.

To be fair, the Court was dealing with a terrible decision from the Court of Appeals which basically said that there was probable cause to search Defendant because he was the last place that hadn't been searched and that he couldn't raise the search of the other occupants, even if their searches might not have been as based in probable cause as his. Either all the occupants were searched constitutionally or they were not. You can't break the constitution until you find the guilty party and then state that it wasn't unconstitutional for this guy. As well, the Court does point out that there are opinions out there from other appellate courts which do not reach the same conclusion as it has. Maybe it's trying to get the USSC's attention by pointing out a split it ought to address.

Anyway, now we have to face the practical applications of this decision. I don't know if they'll be much. Now, as one officer searches the car another officer can run the dog past the individuals who have exited the car. As long as there is no extension to the time of the detention, this second, non-search sniff should not have any constitutional implications and furnish all the particularized suspicion needed.


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¹ And before you yell at me about this, go read the article I linked to in the first sentence of this post. I do not believe this is logical per se, I am just stating that it is the USSC's logic per Caballes and we are obligated to follow it.

Power, Persuasion, & Plea Agreements

So, I'm reading thru Simple Justice and I ran across this post regarding plea agreements. I'm not particularly concerned over whether academics have an accurate view of actual practice, but I did suss out some points which I thought it would be interesting to address.

(1) Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions.

I don't see how refusing to settle would get a defendant "lenient sanctions", except for a not guilty finding. In general, one would expect a pragmatic prosecutor to offer a better deal than Defendant could expect to get even if Defendant just pled straight guilty and got a disposition from the judge. I'm not saying Prosecutor will give up the farm, and she won't offer a punishment which is insufficient, but she'll offer something at least a little less than what the judge will probably hand down. Of course, there will be exceptions to this - charges which cannot garner an offer, judges who are too lenient for a prosecutor to conscientiously make a better offer, the rare unreasonable prosecutor - but this would be the general rule.

On the other hand, if somehow all defendants, and their attorneys, decided that from a date certain there would be no more plea bargains and that they were all going to plead not guilty to everything it would benefit a number of defendants in the future. Of course, the first group to do this would have a lot of people who would get longer sentences than they would have otherwise, but, assuming the government could not increase its resource expenditure to handle all the cases, the government would eventually have to bring fewer charges or drop more. This would benefit those with lesser charges. However, those with more serious charges are going to see the time they spend in prison increase.

As a practical matter, you'll never see all the defendants act in concert. In the short run it is to most of their self interests to take the plea offer. As well, defense counsel isn't charged with defending the best interest of the group, he's charged with defending the interests of the single defendant in his care. He cannot ethically recommend Defendant take one for the team and spend a year in jail for snipe hunting (instead of the 9 months offered) just so that someone else might not have to be charged or convicted of this crime in the future.

(2) The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.

Yes, this is partially true. However, that's an incomplete picture. A good portion of the power in a prosecutor's hands comes from the fact that a large percentage of defendants are provably guilty. They've been found by an officer in possession of contraband. They shoplifted while store security was filming them. They confessed to an investigator. Let's say that these "easy proves" are 60%. In those cases the only real thing which is going on is a determination of what the disposition shall be. If Defendant and Counsel know Defendant has a 99% chance of being found guilty and getting 5 years from the judge, that is what gives the prosecutor a lot of power to plea bargain. The prosecutor has the power to offer anything up to a 5 year sentence. Then come the "probable proves"; let's say these are another 25% of the cases. In those everyone perceives an 80% chance of conviction and therefore Prosecutor's plea bargaining power is less; perhaps her power only rises to the level of the ability to offer up to a 4 years sentence. The scale continues to slide as the perceived ability of the prosecutor to prove a case lessens. Mind you, the plea bargaining power of a prosecutor never completely ceases to be; the mere existence of the ability under the law to offer a plea agreement assures the prosecutor will always have some power in plea negotiations. In a murder case which both sides perceive to have a 5% chance of conviction an offer to reduce to felony battery and probation (rather than potential life) is still something the defense is going to have to consider.

(3) [T]he institution of plea bargains may not improve the well-being of defendants.

Since when is the purpose of anything in the courthouse meant to "improve the well-being of defendants?" Assuming Defendant's interest in court is that of self liberty, the only way he can achieve this in totality is to fight all the way to the end and be found not guilty. In a plea negotiation situation Defendant isn't trying to improve his well-being, he's trying to mitigate the harm society is going to inflict upon his liberty interest in order to further what it has decided are important ends.

(4) Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

Were plea bargains ever entered "voluntarily?" Were they ever desirable for all involved? Let's be serious here. In a perfect universe every lawyer, prosecutor and defense, would have one case and all the time and resources in the world. Judges would be assigned one case at a time and have no docket pressure. Jurors would be bright, attentive, and take their duties seriously. There would be no reason for even a plea at the beginning of trial; we'd just assume a not guilty plea and have at it. In such a system defendants would probably benefit in that more of them would probably be found not guilty. The citizens would also benefit in that there would be no need for the government to discount sentences; those convicted would be segregated from society for as long as they optimally should be.

However, this isn't reality. Judges are coerced into plea agreements because they need to keep their dockets moving. Prosecutors are coerced into plea agreements because it is problematic to gather all the witnesses and all the evidence for each and every single case they are prosecuting, concern about witnesses/evidence, speedy trial concerns, &cetera. The defense is coerced into plea agreements because of the probable worse consequences if the agreement is not entered into. Sure, no one's free will is overborne, but it isn't exactly as though everyone gets there without some force within the judicial system pushing him in that direction.

Just as true is the fact that plea agreements aren't desirable for all involved. They turn the esteemed, legally brilliant judge into a clerk for the prosecutor and defense attorney who are basically just filing their agreement with him. The prosecutor generally offers less than she really thinks is the optimal punishment for the defendant. And what defendant desires his liberty interests to be imposed upon?

Yet, plea agreements aren't going away anytime soon. They are the oil which keeps the judicial system flowing and unless someone comes up with something better they're going to be with us for a long time.

Prosecution: And So It's Been Three Years: Blogging

About three years back I switched from being a defense attorney into the role of a prosecutor. As the third year passes I thought that it might be interesting to look back upon those three years.

I used to wonder, back when I was a defense attorney, why there were so few prosecutors blogging. Now I understand. There are some considerations which are obvious enough, but some of which really hadn't occurred to me.

Of course, critiquing fellow workers and/or the Boss in a blog is just stupid and should be avoided. Anybody who doesn't disagree with a fellow worker once in a while is a saint or a rug, but if a conflict isn't major enough to leave the job a prosecutor should either work to resolve it in shop or just let it be. Nothing good can come of putting it in a blog.

Politics is also obviously a concern. As a deputy prosecutor you have a duty not to cause trouble for the Boss. This means watching out for the sensitivities of voters, other office holders, powerful people in the community, LEO's, judges, news agencies and anyone else who might impact the Boss and/or his office. So, if 5% of the people in the prosecutor's city believe the color Blue is God's color and refuse to swear an oath which does not in end "so help the Blue God" the prosecutor really can't comment on it for fear of offending a significant voting block.

Additionally, there is the concern that anything a prosecutor blogs about a case may be used against her either in trial or in an appeal or habeas. It's obvious that anyone who blogs about a trial while it's in progress is inviting trouble because of its potential to cause a mistrial (e.g.: if a juror stumbles upon it) or give away trial strategy to the other side. As a prosecutor she also has the problem of not knowing if a case is finished. A defendant can file post trial motions, or appeals, or habeases, or even a petition for a writ of actual innocence (in Virginia). Blogging about an important case coming out of the office the prosecutor works in invites these things, particularly in an era when people are overreacting to jurors text messaging or twittering. Sure, the motions filed based on a blog post would, almost always, be spurious, but a prosecutor just shouldn't go out of his way to provide ammo for a convicted offender.

One thing which makes it hard to blog is that a surprising amount of the interesting stuff which happens in a prosecutor's work is prior to court. You vet an interesting indictment before it goes to the grand jury. You help a deputy get a search warrant. Prosecutors and officers discuss what charges to file against someone. You discuss with officers ongoing investigations or the local drug trade connections. A lot of this is truly interesting and has some amazing stories attached. In fact, all sorts of interesting stories pop up precharge. Yet, a prosecutor can't blog about this stuff for both ethical and practical reasons.

Personally, I've been lucky in that both my elected bosses knew about my blog ahead of time and agreed to allow me to continue to blog. I've tried to honor their trust by not doing anything too stupid which might cause the Boss trouble. As anyone who has followed this blog for a while knows my style of blogging has changed somewhat. The strongest part of this blog used to be the stories of what happened in court with theory and news thrown in. Now, I think the strongest is the discussion of theory and law, usually with a concentration on Virginia. There are still some stories here and there, but not near as many. News stories don't often make it into my posts anymore, but that's more of a result of me putting a friendfeed up and just posting news links to it.

Is an Invalid Arrest Warrant Actionable?

Interesting article.

This Year for the US Supreme Court

Litter Patrol: Jail or Not?

After a number of misdemeanor convictions, Defendant is facing her first felony conviction. There's no doubt as to guilt (committed a felony in the presence of an officer), but the sentencing guidelines are really strange. If Defendant has spent any time in jail the guidelines will recommend she get over a year; if she has not the guidelines will recommend probation. Neither seems appropriate. Anyway, per the record, she served 10 days back in 2001, so it looks like she's going to go away for a while.

We all get to court and I give Attorney the plea offer and show him Defendant's guidelines. He goes off and talks to his client. Then he comes back. "She says she's never spent any time in jail." Uh-huh. Sure. I fire up the computer and connect to the Virginia Supreme Court's site. We look at the record of Defendant. Sure enough, February 2001 Defendant was sentenced to 90 days with 80 days suspended.

Attorney calls Defendant to the front of the courtroom and points at the screen. "Says here that you went to jail in 2001." Defendant, looking over my shoulder at the screen, "No sir. I did not. I remember coming to court for that, but I never got no jail time." Attorney decides that he needs to ask Judge for a continuance so he can check this. Judge says, "Attorney, your case is the last of the day, but I've got about an hour of paperwork waiting back in my office. This conviction was from our misdemeanor court. Go check it out and come back."

So off we go (after Defendant begs off to Attorney because she needs to go get a smoke). Attorney and I get walk down the hall to the clerk's office, which is luckily fairly empty of business. A helpful clerk takes about 10 minutes to hunt up the old file.

Right at the top it states "Guilty: Snipe Hunting Punishment: 90 days / 80 ssp." Then we read further down the sentencing document and find "10 days Hwy cleanup shall count as jail time."

WHAT THE HECK IS THAT?!?

We're not sure what to do with that. She was sentenced to 10 days in jail, but apparently the judge didn't make her go. Picking up litter on the side of the road sure isn't jail, but the judge defined it as such for this offender. Does that count against her on the sentencing guidelines under "Prior Incarceration/Commitment" or not? Neither of us are sure.

We bump heads for a little while about this. In the end, while I can make the argument that the litter patrol was incarceration - per the sentencing judge - I agree to not count it if Defendant serves some months on a misdemeanor she has appealed to the felony court. I offer this because if I lose the argument Defendant might get probation for both and I think that's entirely inappropriate. Attorney, knowing that if he argues the litter patrol shouldn't count as incarceration - no matter what the sentencing judge said - he might lose and that decisions the felony judge makes about sentencing guidelines cannot be appealed, recommends it to Defendant as better than risking over a year. She jumps at it.

The rest went pretty much according to normal procedure. Defendant pled guilty, got probation on the felony and months on the misdemeanor. And thus ended another strange day in the courtroom.

Moving Closer to the Portable Electronic Office

The techsavy world (via Gizmodo) has been making a little bit of a fuss about the new "tablet" design which Microsoft is rumored to have come up with, apparently all based upon the leak of this video:

I've been watching the handheld computer market for a while now and this form factor is an innovative idea which I think merits consideration and imitation. Of late, the real innovations in handcomps have been on the ereader branch, so it's good to see innovation from the tablet side.

This solves one of the biggest problems with tablets: how to view a document and take notes on it using the same computer. Sure, there were workarounds. Some split the top and bottom half of the screen; some made the original document smaller. None were really satisfactory. Now a document can be on one panel and you can be taking notes on the other.

Nevertheless, I suspect that this will not become the tablet which launches thousands. Why? Because they will try to do too much and be too fancy and they probably still haven't solved the weight problem. Companies need to concentrate on making this (and any other tablet) into a replacement for a legal pad, files, and books. They need to concentrate on doing this well and getting the price as low as possible - down to the price level of netbooks or what good PDA's used to cost.

Just imagine being able to go to court with a handcomp the size of a legal pad containing all your files and notes (because you save them electronically as soon as you make them), complete copies of all the statutes and cases (for every US jurisdiction), and all the secondary treatises on evidence, procedure and law. It's not here yet, but, God willing, sometime soon.

Here's what I want in a handcomp:

Approximately the size & WEIGHT of a legal pad. If you've ever tried to use a tablet you realize that this is a major issue in usability. A 3-5 lb tablet doesn't sound so bad until you have to lug it around thru an entire trial (did it once - not happening again).

Folds open to have two panels.

The panels use e-ink and are not illuminated unless operator chooses to (this should save a lot of wear and tear on the eyes) & yes, I do realize that e-ink needs improvement

A slot for an SD memory card in order to import and export files / programs

Touch controls which work both with finger and stylus

Approxiamately the innards you'd find in a basic netbook: atom processor, 1 gb memory, at least 40 gb storage - in order to do this solid state storage will probably need to be made affordable and used

A very simple operating system. Nobody has to get too fancy here. Palm's old system worked wonderfully. Maybe something like a modified version of jolicloud. BTW, I can't speak too highly of jolicloud's operating system and have it now on my personal Acer portable and my work Gateway portable. It's amazingly easy to use and pretty much idiot proof.

The ability to send notes which I have written to another person via some sort of IMish function. This would be a great way to write notes freehand to send (as opposed to texting) or even to send handwriting to a secretary to be typed up.

An audio recorder. If Creative can fit a recorder in a Zen the size of a credit card they can get on in this.

I'm sure I'll think of something else later, but for now, that's my perfect handcomp.

Census Worker Lynched in Clay County, Kentucky

Found hung with "Fed" written on his chest, but the FBI hasn't determined whether it was because of "anti-government sentiment."

Here's the AP video:

Why do people become prosecutors?

From D.A.: Prosecutors in Their Own Words by Mark Baker:

"As one former prosecutor who is now a judge reasoned at the beginning of her career, 'I figured as a D.A., if you did your job and the person was guilty, the person went to jail. If you did a bad job and the person was guilty, the person got off. However, if you were in Legal Aid and you did a bad job, somebody went to jail. I figured it wasn't a good idea to represent people and risk them going to jail because of my inexperience.'"

The Kindle, Books, and Record Albums

Scott, who has previously wondered why people would waste money on a Kindle DX, is now singing the praises of books rather than soulless electronics. After reading it, I recognized an argument I'd heard before.



You see, once upon a time there were these sound playback devices called "record albums." Those of you younger than 30 may never have seen one of these. They were discs with several songs scratched onto them which were played by putting a needle on the disc while it rotated. They also came with album covers which provided protection and art. Records were first challenged by 8-tracks, which allowed ease in choosing which included song listened to and were less vulnerable to damage. Then came cassette tapes, which were easier to carry, less vulnerable to damage, and allowed listeners to record their own music. Then came compact discs which offered more space for songs in a smaller format with the ability to easily choose a track and sounded almost as good as records. These killed records. In turn, they are now in the process of being killed by mp3's.

Your record collection told people who you were. People would browse through your collection and you'd even set your most impressive albums (in their covers) out for people to see. If you had the original White Album people would be jealous. If you had a cutting edge comedian like Bob Newhart you showed you were hip. Yet, despite the resistance of music companies and the howls from audiophiles, it all passed because new technologies just provided too much of an advantage to users.



Mass printed books have been around for about 550 years. They aren't about to disappear overnight. However, we've already passed the point where records were when 8-tracks came into existence. Devices such as Palm PDA's and Apple's iPhone have provided ebook reading experiences which are convenient, but neither practical or satisfying because of their size. Reading on a regular computer ties you to a desk or a slightly less inconvenient portable computer. Tablet computers seemed to be the solution, but they have never gotten light enough nor achieved sufficient battery life (I don't know about ya'll, but I can read for more than a couple hours at a sitting). Additionally, unlike ereaders, reading from a computer screen tends to tire the eyes much more than reading from paper.

Nevertheless, publishers are almost all coming around to offering ebooks. A very incomplete list would include firms such as Penguin, Random House, HarperCollins, Simon & Schuster, and Baen. They're not going there because they want to; they are providing ebooks because they've seen the future.

Ebooks are the future. As they stand now they are just short of the slot cassette tapes filled in competition with records. Their practicality and convenience isn't quite to the place that it can replace books completely, but the primary reason that they haven't made huge inroads yet is that the companies selling them are charging too much. Thus they remain an item restricted to those with large amounts of disposable income.



Mind you, I don't think that ereaders will completely drive all books from the field. For professionals and students something like a Kindle DX with an ability to write notes on and save (as though writing in the margins of a text book or taking notes in a case file) should become somewhat normative. Just imagine having all your case files in an ereader with you when the judge or another attorney or your client finds you in the courthouse and starts asking you about some case a month down the road; 10 seconds later you're looking at the file and can answer secure in the knowledge that you're not confusing the Smith case with the Smyth case. Newspapers and magazines are hopeful about this format, but I think this is something of a pipe dream because for a large ereader to be the format used for daily, weekly, or even monthly publications it would have to be cheaper than the smaller ereaders and I just don't see that happening.

On the other hand, low end, smaller ereaders will probably take the place of paperback books. To be honest, if the companies can get us all switched to ebooks rather than paperbacks they can sell the book for less and make more profit. Let's face it, they are currently selling us ebooks which they print out in order to sell them to us. If they can cut out the costs of paper, ink, and the brick&mortar's share of the sale, profit will be almost 100%.

Yet, I believe that books will remain. For one thing, people don't really buy hardback books to read. They buy hardback books because they want to save them, display them, impress others with them. The hardback books you buy and put on display are more important as signalers. They lend atmosphere and let people know who you are (at least who you want them to think you are). For another, ereaders will always be too expensive for some. My thoughts are that the small ereaders need to be under $100 and the large ones need to be somewhere under $250 if they are going to draw customers below the upper middle class. They'll probably also have to improve their graphics to the point that People magazine, etc. could be displayed in full color. Even then, there will be those who cannot afford them. For them some sort of books, newspapers, and magazines will remain. I hope.

Of course, none of this is going to happen tomorrow, or even next week. This is something which will happen in the fullness of time. I look for universities requiring their students to have ereaders to buy and load text books on, as the probable major sign that ereaders have taken the lead over mass market books and I've yet to hear of any doing this so far. I think we may see it in the next ten years.

As for me? Well, I don't own an ereader yet. If I had the money I'd probably be eyeing the Sony ereaders (particularly the PRS_900BC due in December). I want one, but the price point just isn't reasonable enough yet for me to rationalize that I'll save (in the long run) by purchasing an ereader so I can populate it with ebooks which cost less than the books I'd buy otherwise.

Larcenous Licentiousness

1) Beer's just not worth that much trouble.

2) Bus theft and slow speed pcp induced chase.

3) Not worth the time: stealing hot sauce and electrical tape.

4) The pink beanie thief.

5) "Did you hear about the identity thief in Seattle who tried to open a JC Penney credit card account with one of the very women whose identity she had stolen?"

6) Wow. Don't shoot at the tires of a fleeing thief in Missouri or you'll catch a felony charge and have your concealed weapon permit revoked.

7) Stole 6,000 gallons of gasoline in under 23 minutes. That's a talent better spent on NASCAR rather than thievery.

8) Credit card receipts.

9) ATM Machine stolen from inside the bank.

10) If you steal from the police, you will probably go to prison.

11) Don't bring your kid to work with you if you are a thief.

12) Is there a black market in stolen canaries?

Splitting the Magistrate Baby

In Virginia there is a judicial officer known as a magistrate. Magistrates are the guys who are on duty 24 hours a day and their primary job is to decide whether there is probable cause to issue a warrant and set initial bonds (19.2-45). Not only LEO's can go to the magistrate; regular citizens can go and try to get a warrant issued all on their own. The store which gets 30 bad checks a month can go get its own warrants directly, saving us all time. As well, regular citizens can go in and try to get warrants for things such as trespass or assault. Of course, this has made the magistrates the center of a lot of complaints over the years.

There are citizens who blatantly abuse the process, and get all sorts of marginal warrants filed. A favorite trick is for a defendant to get a warrant served on her and immediately go to the magistrate and file charges against the complaining witness. Then there's always forgetful Mammaw Smith from up the hollow who files trespassing charges on Bob Jones every 6 months for trespassing on her family's land, despite the fact that her son sold Jones the property 10 years ago. And it seems that every nasty divorce spawns charges, counter-charges, and more charges.

There isn't a criminal attorney, prosecution or defense, who hasn't stood in court wondering how in the world Mammaw Smith got yet another warrant sworn against poor Bob. Judges get angry because they issue capiases (bench warrants) because Defendant hasn't come to court for his last three court dates and the magistrate keeps giving Defendant bond - after which she again does not show up for court. LEO's and prosecutors get upset because sometimes the magistrates seem not to understand nuances in the law.¹

This is not to say that the rest of us in the crimlaw community haven't taken advantage of the magistrates. Magistrates save judges from being called at 2 a.m. to issue a warrant. They keep prosecutors' offices from being swamped with deciding the merit of minor charges. As well, every officer and prosecutor has told a person who absolutely refuses to take "No, I'm not going file charges" some variation on the following: "Mrs. McGillicutty, I'm not going to file charges on your son-in-law for putting your 22 year old cat to sleep after it got hit by a car. If you want, it is your right go to the magistrate yourself and see if he'll give you a warrant."

In any event, there has been a perception since I've been practicing that the magistrate system needs fixing. With that in mind, it's not too surprising that in the last few years the General Assembly has taken to tinkering with the magistrate offices. It began by taking the power to appoint magistrates away from the chief judge of the circuit and giving the power to the Virginia Supreme Court.² Then, last year, the General Assembly passed laws requiring the chief magistrate to be a lawyer³ and the other magistrates to have a bachelor's degree.

The latest change took place this year, when the General Assembly changed the law so that magistrates have to "consult" with a prosecutor or LEO before issuing a felony warrant. When initially presented to the House and Senate the bill required the magistrate to get "authorization" from a prosecutor or LEO. Somehow that language got changed between presentation and passage.

Rather than leaving the situation the way it was or requiring that LEO's investigate or prosecutors approve all felonies from the beginning the General Assembly split the baby. Basically, it told the magistrates that they weren't trusted to show proper judgment in issuing felony warrants, but that it wasn't going to take the power away from them. It was just going to make it a little less convenient for them to exercise the power. They'd have to make a phone call. After the phone call they could ignore everything a prosecutor or LEO said, but they did have to make the call.

I'd be *annoyed* if someone did that to me and I imagine the magistrates were. However, after an initial bit of confusion it has all settled out. Now, the magistrates do exactly as they did before, except that they call a prosecutor who knows nothing about the case, hasn't seen any evidence, and can't even judge the credibility of the complaining witnesses thru the phone and tell him that they are going to swear out a warrant. Not sure that accomplishes a whole lot.

Personally, I'm not sure that consulting with or even calling to get authorization from a prosecutor accomplishes much. However, I do wish that felonies would require investigation by an officer - at least for warrants on violent felonies. Not so much because I think that the magistrate isn't capable of making the call, but rather because the officers usually have a good idea who needs to be subpoenaed and what evidence is needed for the trial. Citizens who swear out a warrant almost never understand these things and are unreachable until they show up in court on the date the magistrate has scheduled them to be in general district court.



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¹ The issue which comes to mind is the Obstruction of Justice statute. This statute was used as the Virginia version of what other States might call "resisting arrest", but in Jordan the Virginia Supreme Court basically ruled that the Defendant had to succeed in stopping a charge from going forward to constitute obstruction. The solution is easy - the offender should be charged with Attempting to Obstruct Justice, which carries exactly the same penalty (18.2-27). However, people keep getting charged with Obstruction and LEO's say that they can't get magistrates to approve misdemeanor attempt charges.

² I'm not sure what the rationale for this change was. It would seem desirable to have the local chief judge have the control to set consistent policies and legal interpretations within a circuit.

³ It will be interesting to see which lawyers fill these slots once the current, grandfathered chief magistrates leave. Ideally, the slots would go to attorneys who have spent years concentrating their practice on criminal law. However, there is some concern that the Supreme Court will have to beat the bushes to fill these slots and be forced to fill them with lawyers with little criminal law experience.

Post Melendez-Diaz Changes in Virginia Law

Things seem to have settled down in Virginia post-Melendez-Diaz.

Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.

Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.

1) 28 Days - or more - Prior to Trial: A copy of the certificate, along with an explanation of Defendant's right to object and require presence of the person who performed the test to be present in court, must be sent both to Defendant (or counsel) and the Clerk.

2) 14 Days after Certificate Delivered: Defendant's right to have tester present is waived if Commonwealth not notified prior to this date.

3) Prior to Trial: Defendant must raise any claims not to have received timely notice from the Commonwealth prior to trial. The Commonwealth's proof of provision shall be prima facie evidence that it was delivered on that date.

4) If the Trial Court finds that notice was not timely given or that the Commonwealth, after exercising due diligence, cannot have the tester in court on the trial date, shall continue the case.

5) Continuances: Up to 90 days "if the accused has been held continuously in custody." Up to 120 days "if the accused has not been held continuously in custody." No continuance pursuant to this section shall count against Virginia's speedy trial statute.

6) Preliminary Hearings: None of this is required to use a certificate in a preliminary hearing.

Issues:

1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.

2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.

3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?

Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.

The Apple Store Smash & Grab

Seen at Court

Defendant and Attorney are standing 2 feet in front of the judicial bench. Attorney has just had a bond hearing at defendant's request. Defendant told the judge she should lower the bond because "I've had the same bond for 8 months and my family hasn't been able to pay it."

After the judge shoots that down, Defendant starts insisting that he be allowed to plead guilty right now because he has to get out out today. Attorney tries to calm him down; tries to pull him aside to talk; tries to get him to stop talking; tries to make him realize that he has a plea date set for next week when Attorney expects to have a plea offer. He isn't having any of it and keeps insisting that he wants to plead guilty today! The judge tells him that she'll be happy to let him plead guilty and set a sentencing hearing for three months down the line. It doesn't seem to penetrate the head of Defendant that this will probably keep him in jail longer.

Finally, Attorney turns to Defendant and says, "You can do this against my advise. You shouldn't, but you can. I'm going to walk out of the front door of the courthouse either way. You still insist on pleading today?"

And, you know what? It worked. The guy finally came to his senses and decided to wait until next week.

Carroll Doctrine

Last week I got asked to research an interesting question about the limitations which the Gant decision might have upon the Carroll Doctrine. It didn't seem to have any, but it raised my interest.

The Carroll Doctrine came out of a case : Carroll v. U.S., 1924 (267 U.S. 132). A prohibition era case, Carroll is the case which creates the constitutional difference between searches of dwellings and vehicles. After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can't just stop any vehicle he wants to.

The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops has contraband [] therein which is being illegally transported.

To sum it up, Carroll allows LEO's with probable cause to search an entire vehicle because of the mobility of the vehicle and the difficulty of obtaining a warrant in a timely manner.

I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let's consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain't going to work.

Consider a case wherein the local sheriff's department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he's never going to agree to a consent search. There's no cell service anywhere near and the mountain next to the road isn't letting any radio waves get through.

Deputy Smith is faced with a number of bad choices. If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.

In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO's to easily get search warrants. If a smuggler is stopped at a port in Miami or driving through New York City local LEO's probably shouldn't be able to rely on Carroll. On the other hand, in a rural county in Nebraska where there are two deputies on duty and the judge comes by once a week, Carroll may be a necessity if there is to be a realistic possibility of actually enforcing the law.

[addendum] Apprently, my reading of Carroll was too restrictive. Via Commonwealth v. Grimes, I see that the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it.