Don't Sleep With Your Client

The Virginia State Bar has made a spectacularly stupid idea officially unethical: you can no longer sleep with your client.

The Last Mile: Handcomputers Post-iPad

As anyone who has been reading my blawg for a while knows, I have been keen on the idea of a workable tablet which could be carried to court instead of files. This is particularly of interest because both the Clerk of our Circuit Court and my boss are trying to get us to the point that paper isn't needed in the courthouse. This works wonderfully for the storage of closed files, but is more difficult for ongoing case files. Laptops can somewhat fill the gap, but to use the laptops you get stuck at the desk and have to type notes. You really need a tablet which you can carry with you so that you can pop up .pdf's and documents in a case file, take written notes when you are standing at the bench or podium, and use it to read your notes for openings and closings while you are standing in front of the jury.

So, I am really looking forward to a real working tablet. To this point, I have been most impressed with the enTourage eDGe which has a goofy name and is still too heavy and bulky at 3+ pounds (seems light until you carry it in replacement for a paper tablet), but has much more functionality than anything else I've seen.

Now Apple joins the race. I've been looking forward to this for a while because Apple usually tries to be innovative when it develops a new product. Of course, I also carry prejudices with me which caused me to expect the Apple tablet to be too expensive and too locked in to Apple programs (i.e. iTunes). Comes now the Apple "iPad."

It's an unfortunate name, which has led to a lot of jokes, most in the vein of the one which Mad TV did years before Apple ever thought of this tablet.

There was an initial flush of Apple fanboys talking about how wonderful this device is. Here's the uber-maven of tech Leo Laporte gushing about the device (bracketed by Tekzilla).

Then came the almost immediate and large backlash pointing out all the flaws of the device. This one by Molly Wood, via the Buzz Report, has a number of them (and is funner to listen to than most).

The Good: At a price of $499 with 16GB of memory, it sets the price point for everybody else. With it at this price, it becomes very hard for ereaders to justify their current pricing. In particular, I hope it drives down the price of items like the Sony Reader Daily Edition ($399) and the QUE proReader ($799). The proReader in particular seems badly overpriced at 8GB, even though it is impressive if all you want is a reader.

The Bad: All they did was make a big iPod touch. It will probably be a good way to read the internet and could be a good way to watch video if it supported flash (supposedly to be fixed sometime in the future by support for h264 in new HTML). It could at least have been a new type of communication device if it had a camera and microphone and did vid-phone between devices. No stylus either so that a person can write down a quick note and save it (or, continuing the new type of communication device theme, it could have allowed writing notes and sending them to another person with a tablet).

AAAaarrrrggggg!!!! I'm not sure what Apple thought it was doing when it put this product together. It doesn't look like it will work well for much of anything. Primarily, it seems to be interested in pushing against ereaders instead of actually becoming a working hand computer. It's sad, but the last company to do that really well is probably still Palm. I'm still waiting for the somebody to get it right.

[ADDITION] The coolness offensive has begun:

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Obama Calls Out The Supreme Court to Their Face

The following video has been spreading around the internet because, if you watch closely, you can see Justice Alito muttering "Not True" as the President calls the Supreme Court out in the State of the Union Address. However, watch it closely and you'll also see Justice Ginsberg's head snap up into a death stare as the President begins his call out. The only Justice that seemed totally unaffected by the political rabble rousing was the Chief Justice, who almost looks like he's smirking.

New Street Law

Netflix has gotten it into it's computer algorithm that I'm a fan of BBC shows. After having it pop up in suggestions several times, I finally decided to try "New Street Law", a show about barristers in Manchester, England.

It's fascinating. The ongoing story is that of two law chambers (roughly analogous to US law firms). One chambers is dominated by a barrister determined to be a champion of the little guys; it struggles just to keep its doors open from day to day. The other chambers is well established and dominated by a respected barrister who is in the twilight of his career. The twist is that the barrister in the first chambers used to be in the elder barrister's chambers; he left and the elder barrister has never forgiven him. Since these two chambers share the same building, appear to be the only ones in Manchester and constantly face each other in court, this provides the background for every single case.

However, the truly interesting part is watching how the system operates. I'd realized that the British system had solicitors and barristers, but I hadn't realized that the barristers are totally dependent upon the grace of the solicitors to receive cases. It appears that if no solicitor will give a barrister a case (apparently called a brief in British parlance), the barrister is going to starve. There also doesn't appear to be permanently employed set of prosecutors so that cases are sent out to private chambers. It's also strange to see the differences in procedure. I can't imagine trying a case for the defense with the client sitting off to the back behind a glass wall. It's really interesting to watch the trial ongoing and see things go by as a matter of course which would have lawyers here in the States screaming at the top of their lungs (usually because of the lack of our constitutional amendments). Hearing a judge say that she will weigh the defendant's refusal to speak against him is really different. AND, I really want American courts to provide locker rooms in the courthouse for attorneys like British ones do (at least on this show).

Prior to watching this, I had thought that TNT's Raising the Bar was the best representation of defendants. Now I think that New Street Law is. Some clients are innocent, some are unrepentant (and still expect to win), some refuse to cooperate, some women try to use there sexuality to get out of things, and some clients are manipulative as a snake charmer.

Of course, part of the reason that I like this show is that I'm not able to pick it apart as I sit through it like I do American lawyer dramas. Perhaps an actual British barrister sits through this show pointing out errors every 3 minutes. Still, I thought it was great.

I checked and this show only ran for two seasons. If you've got Netflix and a device which will stream to your TV (I use a Roku), you can stream the first season (8 episodes), but you'll have to get the second season mailed to you. If you haven't figured it out yet, I heartily recommend you find some time and watch New Street Law.

New Additions to Virginia Criminal Cases & Law

December's appellate cases have been entered into Virginia Criminal Cases & Law.
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Around the World & Near to Home

1) Wonderful, a brand new way to make meth.

2) The much vaunted "can't arrest a naked person defense."

3) The Board of Governors of the Kentucky Bar Association has voted to disbar Melbourne Mills Jr. I know this doesn't mean much to those of you who didn't grow up in Kentucky, but it's the only lawyer's name that stuck with me from my youth. I think the reason was that he did a bunch of commercials (was he the guy that shot a raybeam from his hand at a dinosaur?).

4) On his way out the door, Governor Kaine agrees to let a murderer go back to Germany causing a ruckus over whether the murderer could get the parole there that he can't get here.
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Kentucky's Constitutionally Mandated Oath of Office: Attorney General

Okay, it starts out with the normal boring oath that is given everywhere, but listen until the end, because apparently Kentucky has a serious ongoing problem with duels?!?

Probation: Uses, Failures & Effects

The theory behind probation (and parole, although that's rare in Virginia anymore) is that it is agreement between the government and the defendant. The government forgoes a certain amount of punishment and the defendant agrees to forswear all his evil ways. Of course, the carrot comes with an explicit stick: "Screw this up and we'll throw you back in." Typically, a defendant will receive a sentence of something like "5 years with 4 years 10 months suspended, the suspended time to remain suspended for a period of 5 years with 2 years of supervised probation." At any time within the 5 years that the time is suspended the court could impose some or all of it for failing to abide by conditions the court has imposed (new convictions, failing to remain on good behavior, etc.). Realistically, while the suspended time could be imposed at any time, it is unlikely to be imposed unless the defendant is still on probation to have someone to report him to the court.

Defendants almost never concern themselves with the amount of time or conditions which attach to probation. They have myopic vision which zeros in on how much time they are actually getting for their conviction, ignoring all else. Despite their attorneys' advice to the contrary, I'm fairly certain that the vast majority of felony defendants would agree to 10 years of probation rather than spend a month in jail and a year of probation.

The purpose of probation is fairly straight forward. Of the four purported reasons for a judicial criminal sentence - rehabilitation, quarantine (keeping the defendant from further harming the community), deterring others from offending, and simple punishment - probation falls almost exclusively in the rehabilitation. It's society's attempt to put someone back on the street and keep them on the straight and narrow.

The reality is somewhat different. Pretty much everyone in the courtroom, except perhaps the defendant himself, expects to see many (probably most) of the defendants back in the courtroom during their probation. This is based upon common experience repeated over and over and over again. Certainly, not all people put on probation violate it (and God bless those who don't), but the experiential bias which comes from being in the courtroom every day wouldn't lead judges, defense attorneys, or prosecutors to bet on it.

In some courthouses this can lead to a "we'll get him later" attitude which leads to sentences that are low because prosecutors and judges think they'll have another go at this guy a year or so down the line when the offender is back before the court in a probation violation hearing. In that hearing the level of proof is lower and the rules of evidence are far easier (basically, the hearing proceeds with all sorts of hearsay reported by the probation officer). It is extremely rare that a defendant is found not to have violated his probation and most probation hearings are primarily about what the punishment for the violation will be. You'll even hear defense attorneys trying to take advantage of this attitude in plea negotiations: "C'mon Mary, this is John Smith. You can give him a short sentence. You know you'll get it on the backside."

The flaw in probation is that offenders and society at large don't associate punishment meted out under the probation system with the original offense. They see it as punishment for the probation violation. Thus, incarceration which proceeds from a probation violation only serves the purpose of quarantining of the defendant. The fact that punishment is occurring means that rehabilitation has failed. Community deterrence doesn't occur because the punishment is divorced from the crime (although, assuming the offender hangs around with others on probation it will at least serve as a lesson to them). Simple punishment for the initial crime went by the wayside in the initial sentencing; the punishment in a probation violation hearing is for the failure of the offender to reform himself. Still, the offender ends up incarcerated.

Herein lies the philosophical fork in the road. If someone believes that there is a class of persons who are going to break the law no matter what is done, then the goal is to get these individuals off the streets for the longest period of time possible and the "We'll get him later" method make the most sense. It allows offenders to be removed from society in a far easier manner than a full blown felony trial with its constitutional protections and high level of proof. It also provides a safety valve because those very few who have the fortitude to fly straight and actually make it through probation without violating don't get an unnecessary period of incarceration (a benefit to both them and the taxpayer). On the other hand, if someone believes that individuals, and through them society as a whole, can be taught and learn through their errors then delaying punishment for the initial crime and putting people in prison later for probation violations which they don't associate with their original offense is counter productive. If the first felony larceny offense only gets someone a 3 year suspended sentence and a year of probation (a fairly typical sentence), no one learns not to commit larceny. At best, they learn to live by the rules of probation. This does not shape society away from those acts which we have deemed serious enough to make criminal.

CES: Tools, eReaders, & Dual Screens

Anybody who follows any tech news knows that this last week was the Consumer Electronics Show. It's a yearly get together of almost all of the electronics companies where they show off all that's new and interesting. The big things this year have been 3D TV's, eReaders, and tablet computers. I could care less about 3D TV's, which I hope die a quick death (unless someone figures out holographics). However, eReaders and tablet computers are heading somewhere that I see as being extremely useful.

The best of the eReaders seems to be the QUE proReader. Here's a video in which engadget examines the proReader:

The proReader appears to be the thinest, lightest most capable new eReader out there. At 8.5 X 11", it is larger than the Sony Reader Daily Edition at 7" and maybe smaller than the Amazon Kindle DX at 9.7" (measured diagonally). Effectively, I think the sizes will probably all be adequate for viewing .pdf's or .doc's stored as part of a case file. The proReader seems to have the same flaw as the DX, in that the reported capabilities does not include the ability to add SD memory cards. As well, both the proReader and the Sony RDE do not have the Kindle's ability to access the web pages via the internet (limiting the access to downloading books and magazines). The proReader, at 8gb, has more memory than the DX, at 4gb, and far more than the Sony RDE, at 1.6gb. There does not seem to be the ability for freehand note taking in either the proReader or the DX that the Sony RDE claims to have (a vital need if this is going to become business useful). It's becoming more and more foreseeable that in the near future the cutting edge attorney won't be going to court with the four files for that day's cases, but with an ereader that has the files for all his cases in it.

However, the tech's not there yet. One innovation which I think would be a boon would be the folding dual screen. MSI was showing off a very early version of this sort of device. Here's engadget's video:

Obviously, that device is still flawed and I suspect that it would be too heavy to carry and have too little battery power for long use because it's still trying to be a full on computer. Still, imagine having a document displayed on one side and taking written notes on the other side which could be saved to the same case file. It'd be a great way to work on another case while waiting a couple hours for the case you are in court for to be called. As well, it would allow you to take notes straight into your file in the courtroom and easily store them forever.

Personally, I'm looking for a very light, very thin, fold-open device which used e-ink on both sides, both to save on eye strain and extend the battery to a couple days. Wifi and/or telephonic internet connection would be good, so that files and messages could be sent back and forth between the office and so legal web resources could be accessed. We're not there yet. If I had to buy a device at this moment, I'd get the Sony RDE because it allows SD cards to be exchanged and freehand notes.

Of course, now we all wait to see what the Apple most wonderfulest superslate tablet computer which every tech site on the web is already drooling over, even though it shan't be even possibly announced until the end of this month. Newton 2?

ADDENDUM - I was just watching TWIT and they pointed out the enTourage eDGe, which is pretty close to what I want. Here's Cnet's first look video:

They say that the ereader is on the slow side and the computer isn't exactly the fastest in the world. I could live with that, but I still need it to be very thin, very light, and have 2 days worth of battery power once charged. I doubt they'll be able to do this unless both sides use e-ink. Still, this is the closest to what I've been looking for.

BTW: Apparently, the proReader does allow freehand. You just have to provide your own stylus (or write with your finger like you did in kindergarten).

Blackstone: Should criminal law be revised every hundred years?

The Legislature's Duty:
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In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal ; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind : though it sometimes (provided there be no transgression of these eternal boundaries) may modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge ; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government ; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion ; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence ; from, or from all, of these causes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil.

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[E]ven here [in Great Britain] we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded ; from not repealing such of the old penal laws as are either obsolete or absurd ; and from too little care attention in framing and passing new ones. The enacting of penalties, to which a whole nation shall be subject, ought not to be left as matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons, who know what proditions the law has already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proofed, and who will judge without passion or prejudice how adequate they are to the evil. It never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon. And surely equal precaution is necessary, when laws are to be established, which may affect the property, liberty, and perhaps even lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape ; or cut down a cherry tree in an orchard. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians.

It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public : but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy.
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The Northern Virginia Federal Congressional Penitentiary

Norm & Scott have suggested that for legislators to serve they should have to spend 6 months in prison so that they know what's happening to people subject to the laws they pass. Somehow, I just don't see it working out that way . . .
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Warden: Nancy Pelosi
76 Lyndon Baines Johnson Road
Alexandria, Virginia 22306

Security Level: Ultra-Low

Assignment Criteria: Election to Congress or conviction of graft while a sitting federal legislator.

Special Programs: Golf rehabilitation program. Cute Aide withdrawal therapy.

Incarceration Program: Inmates are housed two to a room and are locked down from midnight until 6 a.m. There is only one phone per room and calls are limited to 3 hours per day and may not be received except between the hours of 9 a.m. and 10 p.m. Inmates must supervise cleanup of the tennis courts, gym, and golf course between 9-11 a.m. daily.

Punishment of misbehavior: Institutional sanctions are punished by solitary confinement in a room with no honor bar, no premium cable, and no turn-down service. In order to avoid issues the 8th Amendment no institutional sanction shall last longer than 3 days.

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Around Virginia

1) Judge Warren, the longest sitting judge in Virginia, is retiring. Judge Warren sat mainly in rural counties. Unlike a lot of "circuit" court judges in the modern world, Judge Warren actually rode his circuit and I used to appear before him in both Powhattan and Amelia counties.

2) Speculation that there will be more death eligible crimes under the new governor.

3) In some places the bad economy has led to more financial crimes.

4) Is it constitutional for a State agency to force an owner to lease his mineral rights, then allow the company to take its expenses out of the payments, and then have that same State agency hold the money in escrow rather than paying the owner?

A New Year, A New Project: Virginia Criminal Cases & Law

This was my project over the Christmas / New Year breaks. It's an outline of the cases which come out each month from the Virginia appellate courts and those cases out of the 4th Circuit and US Supreme Court which I think are relevant to Virginia criminal law. I hope it will be useful to those of you from Virginia.

I built this with Squarespace instead of writing this one myself. In fact, I don't know if the webpage would have been created if Squarespace hadn't been offering a free 14 day trial. Squarespace works pretty well and I doubt I would have gotten the page up as quickly as I did if I had written it myself instead.

Anyway here's the link: Lammers' Virginia Criminal Cases & Law

The Ugky Side of Jury Nullification: Emmett Till

There are a lot of people out there who think that jury nullification is a panacea. The problem is that jury nullification is an application of the jurors' prejudices. No one thinks about how nullification can allow the dark sides of people to come to the fore and allow evil to triumph. Ladies and Gentlemen, I give you the Emmett Till trial.

In 1955, Emmett Till was a 14 year old Black kid who was visiting relatives in Jackson, Mississippi. He was rude to a married White woman. That night at least two White men broke in while Till was asleep and dragged him off. J.W. Milam and Roy Bryant took the youth off and beat him at gunpoint. Then, incensed that Till would not admit they were better than him or recant his statement that he had slept with white women, they shot him dead. They tied a fan to the neck of the body using barbed wire and through it into a river.

When Milam and Bryant were tried their attorneys trotted out the defense that there was no proof that Emmett Till was dead. Till's mother identified his body and a unique ring which had belonged to Till's father was found on the body. The defense attorneys argued that it was all a plot to help destroy the way of life of Southern white people. The jury took an hour to find the defendants not guilty.

The prejudices involved in the case are pretty clear, but in case none of you are up on your civil rights history here's a letter written to LIFE about the murder and trial:

Maybe the Emmett Till case will convince "smart alecky" Negroes to stay in the North where such things as the attempted assault of Mrs. Bryant are condoned. We do not want them in the South and will not have them even if it means drastic measures.

Mrs. Sarah White, Memphis, Tennessee

And, lest any of you might think there's a chance the defendants didn't do it - they confessed to a reporter after they were found not guilty.

Naughty or Nice: The Claus Saga

Why I am Glad to Practice Law in The U.S. (Not the UK)

They certainly do things differently over there.

Hiatus Due to Snow

As those of you that follow the news might know, we're buried under about 2 feet of snow here in the Appalachians. My power is out with estimates that it won't be back until 27 December. I've only got internet at a couple of local eateries and can only occupy a table in the warm, dryness of the Pine Mountain Grill for so long.

So, for the near future I wish you all a Merry Christmas and hope to put something up on the blawg soon.

Off Point: Nope, It's Not English

This video has popped up on several sites I've looked at this morning. The song is catchy, but it's complete jibberish. The idea behind it is to let English speakers know what they sound like to those who don't speak the Lingua Americana.

The Virginia Court of Appeals Overrules the Virginia Supreme Court on Whitehead

A while back the Virginia Supreme Court came out with an opinion about the "right result / wrong reason" doctrine wherein it stated in language plain for all to see:

Whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the doctrine.

Whitehead v. Commonwealth was a case wherein the Supreme Court (1) rejected as plainly wrong the findings of the trial court and the court of appeals that a person could be convicted of receiving stolen goods when she received benefits from a third party's theft and sale of goods (boyfriend paying her rent, etc.).

(2) Then it dealt with the Commonwealth's assertion that Whitehead was still guilty because she was in constructive possession of the stolen items (they were stored in her apartment). The Supreme Court rejected that argument with the reasoning above which basically boils down to "The right result / wrong reason doctrine does not apply to uphold a conviction if the ARGUMENT was made for the first time on appeal and the trial judge was never given the opportunity to rule on the ARGUMENT."

(3) Finally, the Supreme Court dealt with another argument the Commonwealth presented first during the appeal: concealment as proof of participation. This the Supreme Court rejected this argument by (a) first adopting the rationale that it had under constructive possession argument

Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead's convictions.

and then it moved into an area which the Court of Appeals had previously addressed. The Supreme Court noted with approval prior Court of Appeals cases which had held the rather commonsense position that (b) an appellee cannot argue on appeal a position which would require evidence which had not been provided during the trial. In fact, it takes the Court of Appeals doctrine one step further.

Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible.

In making this determination, the Supreme Court discussed how this applied to both the constructive possession argument and the concealment argument.

So, in the end, the Supreme Court ruled that an appellee's new argument couldn't be heard when first raised during the appeal because (1) the trial judge had no opportunity to rule on the new argument and, (2) if the Commonwealth tried to prove its case via one method of proof it cannot offer another method of proof in the appeal because the defense attorney had no opportunity to rebut the new method in the trial court.

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Comes now the Court of Appeals.

In Perry v. Commonwealth the Court of Appeals is faced with the Commonwealth making a probable cause argument instead of the reasonable articulable suspicion. The Court of Appeals "assume without deciding" that the trial court got the reasonable articulable suspicion decision wrong. Then it moves on to the right result / wrong reason doctrine and Whitehead. It specifically quotes the first part of the Supreme Court's rationale

The Supreme Court refused to consider this new theory of guilt offered by the Commonwealth, stating "[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not 'proper cases' for the application of the doctrine."

Then comes the all important word of the new opinion

Nevertheless

Then the Court of Appeals goes on to decide

Whitehead, contrary to the appellant's claim, applies only when the new argument made on appeal involves a consideration of factual findings that the trial court never reached, rather than application of a different legal theory to facts already considered by the trial court.

Following this, the Court of Appeals rules that since both reasonable articulable suspicion and probable cause are 4th Amendment issues and arguing one 4th Amendment issue at trial suffices to preserve other 4th Amendment issues arising from the same acts.

We find that this case presents an appropriate situation for the application of the right result/wrong reason doctrine. . . . [T]he parties here were aware at all stages of this case that the courts would look to the Fourth Amendment to determine if Trooper Weidhaas’s actions were appropriate - regardless of whether the question involved probable cause or reasonable articulable suspicion.

It then goes on to uphold the search based upon a reason never argued in the trial court.

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Of course, this is, as even the Court of Appeals obviously noted, contrary to the holding in Whitehead. This argument was never made before the trial judge and therefore never allowed the trial judge to an opportunity to rule on it. Thus it fails the first part of the Supreme Court's decision.

As to the second part of the Supreme Court's decision, it's obvious that the appellant never had the opportunity to rebut this different argument in the trial court. An argument never made in the trial court isn't even presented for a defendant to rebut. Yes, they both fell under the umbrella of the 4th Amendment, and I'll "assume without deciding" that no different evidence would have been presented had the new argument been made. Still, the arguments which would be made as to whether an arrest was legitimate under the 4th Amendment are far different from the arguments made as to whether there was reasonable articulable suspicion. The standard of a Terry pat down and the facts which justify it are more easily met than probable cause. A defendant arguing against probable cause for an arrest is definitely going to be making different arguments than a defendant arguing against reasonable articulable suspicion. The one saving grace here for the Court of Appeals is that while this part is wrong it would probably be held to be harmless error.

Hopefully, the Supreme Court will take this case and decide whether it will alter its decision to come into compliance with the Court of Appeals or overrule the lower court. If it doesn't do it with this case the Supreme Court will have to face this issue at some time in the future because every time the Attorney General's office and the Court of Appeals use Perry the obvious appeal to the Supreme Court will be based on Whitehead.

Up, up, & away!

I'm having a discussion with another prosecutor about how libertarianism is superficially attractive, but not a philosophy I can live with in the end. I explain that I just can't adopt the "let them die in the streets as long as they don't bother anybody else" point of view for practical and (mostly) moral reasons to my skeptical co-worker. Then a third member of the office walks over and says to skeptical co-worker, "I think you two are going to end up doing the same thing in the end anyway." We both look at him quizzically and he goes on to explain:

"You see, you'll get there because you don't want to lose a case. Ken? He'll get there because he's Clark Kent."
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Tokyo Vice

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 Tokyo Vice a 3.7. It's an intriguing look into the criminal underbelly of Japan mixed with the lives of newspaper reporters and police.

I first heard about this book when I saw the author hawking it on the Daily Show. His main hook is the biggest scoop of his career: uncovering FBI cooperation in bringing a Yakuza boss to the US in order to get a liver transplant. Of course, this is a big thing to him. It ended his career as a reporter in Japan, got him published in the Washington Post, got him death threats, probably got a female friend of his killed, and brought down a high level gang boss. It's a big story. However, it's not what draws me to this book (BTW, I listened to this via audiobook).

What really makes this interesting to me is the exposure to a very different culture. We start out with an explanation of how people get hired into a major Japanese newspaper and how it is to work the police beat.The hiring process is very different than what we have. In Japan every paper administers its own type of SAT type test and then puts people through a series of interviews before selecting new reporters. People don't work their way up from smaller papers to the big leagues; its like being hired by the New York Times or Washington Post straight out of college. And the police beat seems to work a little differently than I think it does in the US. One of the pieces of advice given to the author is to drop by the police officers' homes and make friends with them. That seems to go over pretty well in Japan. However, I will not recommend this approach in the US; I'm not sure I can vouch for the safety of a news reporter who drops by a deputy's house at 1 a.m. after he's gotten back from his shift.

We also get a pretty good look at the Japanese sex industry. The way it's presented, Japan has a massive, thriving industry in which men can get all sorts of things, ranging from just sitting and talking with a pretty woman at a hostess bar to clubs where girls dress in all sorts of costumes to a club which has its own subway car so that a guy can go into it with a girl and "molest" her. Pretty much anything is legal and the cops only intervene on rare occasions (technically vaginal sex is forbidden and if there is a reason the police want to shut someone down they may use this). Apparently, wives in Japan accept this as just something men do. At least we know that the one time the author admits an infidelity to his wife that she just tells him to keep it to himself and not bring home any diseases.

Interacting in this sexual community is what starts to give the author his insight into the Yakuza. It's not like the Mob here; in Japan the mobsters are so looked up to that there are fan magazines dedicated to them. The author starts to see that women, especially foreigners, are not doing all this willingly and are being forced into doing things and paying "taxes." The mobsters lean on them because they don't have valid visas and everyone knows that the police will not deal with the problem. If notified all the police will do is exactly what the mobsters are threatening: the police will merely eject the girl from Japan. From there we are shown more and more of the underside of Japan and how it is ignored by both the populace and police, especially if foreigners are the victims.

I listened to Tokyo Vice via audiobook and kept stopping the audio and rewinding it to listen to things over. It's a book which both those involved in criminal justice will find interesting as well as those who are interested in reading about cultures quite different than the one we've grown up in.

Expungement

A note from a loyal fan (hey, if you're going to be anonymous I get to assume things):

Horrendously off-topic comment, but I'm evidently not smart enough to find an e-mail address for you anywhere on this blog, was hesitant to track down your work e-mail, and couldn't leave this comment on the post that prompted it because that post was the video you did on expungement in Virginia.

Eager readers (and viewers!) will remember that the gist of your presentation on expungement was: if your case was ended by acquittal, by nolle pross, or by dismissal (recognizing that starting a few years ago, 'dismissal' and 'nolle prosequi' are not synonyms) then you were entitled under § 19.2-302.2(A) to expungement. If you pled guilty, nolo contendere, or if the court disposed of your case with any finding that indicated there was sufficient evidence to find guilt -- even if it did not ultimately enter a conviction of guilt -- then you were out of luck, expungement-wise.

This summer, the Court of Appeals handed down a couple of consolidated cases out of Bristol -- Comm. v. Compton and Brown v. Comm. -- that appear to add another rule to the list.

Brown was charged with misdemeanor assault and battery, and the Salem General District Court took the charge under advisement for 12 months pending his successful completion of ASAP. After Brown completed the program, the court ordered the charge dismissed. The Commonwealth opposed Brown's subsequent expungement request, reasoning that requiring an alcohol program was the condition for the dismissal and this means he was not innocent -- notwithstanding the absence of any specific finding or plea to the contrary.

Compton was charged with felony abuse and neglect of a child, and the Bristol JDR court deferred any finding contingent upon Compton's submitting a written parenting plan and performing community service. Subsequent to her successful completion of these conditions, the court dismissed the charge, again without making any finding of guilt or accepting any plea from Compton.

In both cases, the Court of Appeals held that expungement was available.

This isn't any radical departure from the general rules your video discussed, but given the paucity of caselaw on the subject, I thought the addition of another set of specific circumstances that support expungement would be of interest.

Thanks. I have added an easier to find way to click and send an email to me. Hopefully this will make it easier next time.

Brown v. Commonwealth is a Virginia Supreme Court case. The note I filed away for myself after reading this case follows:

Brown v. Commonwealth, JUN09, VaSC No. 081417 & 081588: (1) The fact that a defendant obeyed a court condition in order to have a charge dismissed does not establish that the defendant was guilty. (2) If a case is taken under advisement for a period of time without entry of a plea or a finding of guilt or facts sufficient and then dismissed after a period of time the defendant can have the charge expunged. (3) A person who pled guilty cannot have a charge expunged even if the case was dismissed per a first offender statute. (4) A person who pled nolo contendere cannot have a charge expunged because he agreed to be treated as though guilty. (5) A defendant who pled not guilty and had a judge find facts sufficient cannot have his charge expunged. (6) Any charge dismissed pursuant to a first offender statute cannot be expunged.

Parts (1) & (2) are pretty much what Anonymous pointed out. I agree that this doesn't change the law. It just lays out a road map for those who want to leave people the possibility of expungement.

Affirmative Defense for Mountain Murders

So, I'm having a discussion with another attorney today and he was trying to explain how mountain folk feel about murder. As he explained it there is a two part affirmative defense which doesn't exist in other parts of the Commonwealth:

(1) That sonuvab!tch needed to get kilt, and
(2) I was the right person to do it.

We discussed for a while whether this is a perfect defense and came to the conclusion that it is in some cases, but not in others. It seems to depend on how much a sonuvab!cth he is and whether he is either (a) on your land, or (b) with your wife.

Is it Intrinsically Noble to stand between the Reviled and society?

No.

BUT, that doesn't make a defense attorney's job any less noble.

Let's be clear here, we're not talking about people charged with something he didn't do; representing that person is clearly noble. We're not talking about someone overcharged or in danger of being over-punished; representing that person is noble. Nor are we talking about representing the immature, the mentally ill, a person who steals to eat. It is clear that standing between society and these people is intrinsically noble.

What we're talking about here is a Reviled One. Picture the most deservedly hated person you can think of. This is the person we're talking about (someone like the BTK killer, a 9/11 terrorist, the guy who ambushed and killed the four officers yesterday). He is a member of the small group of deservedly reviled and there is nothing intrinsically honorable or or noble in protecting him from society.

And yet, the defense attorney who takes that job and does the absolute best he can in defense of that person is noble.

Why?

(1) Because these cases are the ones which pose the greatest danger to society. If there isn't someone out there fighting tooth and nail for Reviled One these cases will inevitably end up with losses of rights and protections. These are the cases wherein everyone is going to cut corners, ignore rights, and crush protections in order to get to vengeance as quickly as possible. Someone has to stand in front of that bulldozer and frustrate its destruction of the rights and protections of all on the way to destroy the Reviled One.

(2) Because there is no way that society can be just if the Reviled One doesn't have the ability to access, understand, and properly avail himself of all the societal protections. A defendant cannot really represent himself well in court. Even if he is bright, he isn't experienced. Legal research is fairly arcane and even if he has access to a decent law library in the jail (unlikely) he is almost assuredly going to miss important things. He doesn't know written court rules. He definitely doesn't know the unwritten rules of practice, which vary depending on State, region, courthouse, and judge. Without an attorney even the brightest, most capable person is not going to receive a fair trial. By giving Reviled One all the access to laws, rules, procedures, and protections he should have the defense attorney provides an honorable and noble service.

Defense attorneys do serve justice. One could even say that they "seek justice" just as much as any prosecutor does. And I now say it. Defense attorneys seek justice. It's not the straight forward justice that prosecutors enjoy. It's a more esoteric form. Defense attorneys advocate for short term injustice and in the process they assure societal justice in the longer term. That's either seeking justice or having it occur as an unintended, collateral consequence. Forgive me if I'm a bit of an idealist, but I choose to believe that defense attorneys are seeking overall justice, not just providing it by accident.
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Need a Job? Go See Brian Patton

I was messing around with my LinkedIn page and listening to the UK/Tenn. game when I tripped over the ad for Russell County Commonwealth Attorney's Office hiring a new Assistant Commonwealth Attorney.

Admittedly, I don't know much about Russell County It's SE of the county I work in), but I've met Brian Patton (the Commonwealth Attorney getting sworn in to the left) and he seems to be a good guy. If you like living near the mountains and are looking for an interesting opportunity (and have a Virginia Bar card) you might consider looking into it.

The Blind Side

5 second review: Feel good film, but not deep.

30 second review: Homeless black teenager gets into a private school because he's athletic and is adopted by a rich white family which finds him wandering the street after school.

In depth: This is based upon a true story, but you get the feeling it was loosely based (See RD version & NYTimes). Once upon a time this would have been an after school special and now it's the kind of fare you'd expect to find on Lifetime. The only thing which raises it above this level is the performances of the actors and Sandra Bullock. The story would have been much edgier, and probably better, if it had been presented from the black kid's point of view. Instead it switches back and forth between a 3d party point of view to the white mother's.

The first part of the movie shows how Michael Oher gets into a private, Christian school almost by accident. The only reason he even gets to the school is because he is spending nights at the house of a family whose father promised his mother that he would send her grandson into a Christian school. Oher is just brought along and it's made pretty clear that he gets in, despite not being even slightly academically qualified, because he is extremely large and athletically gifted.

Then we are shown how Oher is living on the street, even as he goes to this rich, private school. It's not exactly subtle. We see him gathering popcorn after a basketball game to eat and washing his single extra t-shirt in a 24 hour laundromat (and sneaking his shirt in with someone else's dryer). We also see that one teacher taking interest in him and discovering that he's not dumb, he's just never been taught.

Next we see the mother of the Tuohy family taking him in and the family, pushed by mama, rallying around him and pushing him forward so that he can play football and develop learning skills in order to raise his grades and allow him to go to college on a football scholarship. There are scenes in here which deal with issues such as trusting someone from the poor side of town to live in your house, worrying about that the relationship between Michael and Collins (the Tuohy's daughter of approximately the same age), and Mrs. Tuohy dealing with friends who can't understand how she can have a black kid living at her house. However, all of these are fairly short; there's no in depth treatment of any of them.

Finally, there's a conflict at the end when the NCAA basically accuses the Tuohy's of taking Michael in just so they could channel him toward their beloved alma mater Ole Miss. There's no doubt that they pushed him in that direction, and it starts some trouble and soul searching. Nevertheless, in the end everybody is happy and all is happy as we are treated to the touching scene of the Tuohy's dropping Michael Oher off at Ole Miss.

The movie glosses over some things (such as "the great Mormon grade grab" - blame the NYT for that characterization, not me), and switches others around (Mrs. Tuohy didn't come out of the stands to help Michael learn to play, she came out to help the coaches when Michael wouldn't let them look at an injury), but it generally seems to be true to what Michael Lewis wrote in his article and book about Oher. There are two things which stand out as different. First, Mr. Tuohy is downplayed in the movie. He plays a role, but it seems less vital than that reflected in the writing. Second, Michael Oher is basically treated as though he is dumb (cannot speak). The articles seem to indicate that he was reluctant to speak about things that were embarrassing or painful, but that he was talkative at other times - particularly in his senior year. I don't know who chose to make Michael Oher have the personality of a quiet 2 yer old, but I suspect he is doing Oher a disservice.

I'm not sure that this movie makes it onto the screen if it had been about a rich white family taking in a homeless white kid from the trailer park or an affluent black family taking in a black kid and channeling him to Morehouse. Let's face it, we all know the hook is that this is a "we can all get along", kumbaya film. As such it does a good job. It could have avoided a lot of the criticisms and complaints which will be made abut it if it had been about people all with the same skin color, but then it wouldn't be true. (or at least as true as Hollywood ever gets).

Best line: Who knew we'd have a black son before we had a Democrat for a friend?

Anatomy of a Righteous Shoot

I'm visiting with my folks in Cincinnati when the morning programs are interrupted and the chief of police and mayor come on to do a press release about a shooting which had occurred the day before. This guy has misdemeanor warrants and decided that he was going to grab his pistol, run and shoot it out.

This is an abridged version (after an advertisement).

One interesting thing is that immediately after the shooting the officer in the camera puts his pistol on the ground. I'm not sure why he did that. He did not know he was on camera (the second video is from the store, not a police vehicle).

Lawyers Needed in London (Kentucky that is)

As part of my vacation I've been running around getting pictures of some of the local courthouses in Kentucky. Most of them I got on my way North (before it started raining). However, I was driving back to Virginia this morning I stopped in London, Kentucky to get gas. I figured the local courthouse wasn't too far away and thought I could spare a half hour or so to go grab some pictures.

I asked the lady at the counter of the stop and steal where the local courthouse was and she called the delivery guy over to give me directions. After I get directions they're both standing there pointedly not asking me why I need to know. The conversation then proceeded like this:

Me: Don't worry. I'm not trouble. I'm an attorney from Virginia and I'm taking pictures of courthouses while I'm on vacation.

Lady: You know, we need more good lawyers here in London.

Me: I know Virginia law. Kentucky law, not so much.

Lady: You need to learn some and move down here.

Unfortunately, I think I'm going to have to disappoint the lady. No reciprocity and an abiding desire not to take another Bar examine ever again are almost insurmountable obstacles.

Ordinary Injustice

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. It's worth a read for those involved in the criminal justice system.

This review of Ordinary Injustice is coming later than most. I think this is partly due to being asked to review it later than others. However, a greater part is my reaction to the book made it difficult for me to write the review.

The theme of the book is that injustice becomes part of the system not so much from a desire to do evil, but from improper acts by various actors which are not checked by other actors in the system. It's a theme which I agree with. She implies that it is a pervasive state throughout criminal justice systems in the US. This I also agree with. Every jurisdiction has something which could be fixed. By the examples she chooses, she further implies that the flaws are universally cataclysmic. This I don't agree with. It's been my experience that seriously flawed systems are usually endemic, not pandemic. As we are people, not God, none of us has ever succeeded in making a perfect justice system, but there are a few that come close, a great number in the gray area and those few which are so badly out of kilter that they stick out like sore thumbs. To be fair, there may be more terribly bad systems than amazingly good ones; still, the vast majority are going to be in the gray area where the flaws aren't shockingly obvious. In fact, if she wanted to make a strong case this is where it should have been made.

In the gray is where "ordinary injustice" would occur. An examination of similar jurisdictions wherein one consistently has sentences of three months more than the other for the same crimes would have shed more light on this. Is the prosecution in one jurisdiction pushing for higher sentences? Is the prosecution in another not pushing at all? Has the judge succumbed to political pressure from local merchants to impose higher sentences in theft cases? Has the judge succumbed to pressure not to put too many people in jail because the local jail only has 20 beds and the locality will have to pay to incarcerate any more in another locality's jail? Are the local defense attorneys just taking part in an assembly line so that they can get paid? Are the young turks over at the PD office putting principle over their clients' interests so that they end up getting larger sentences than they should? Various factors can cause a local jurisdiction to develop in a certain manner until "that's the way we've always done it here" becomes the reason things are still done that way. Of course, the problem with pursuing this is that it would take years of sociological research, tons of data, be very hard to pin down (because of so many possible causes), and - in the end - probably be about as exciting to read about as a discussion on variations in the mass production of bread.

Thus, we get Amy Bach's book, which is largely a discussion of cases of extraordinary injustices. She gives us four different examples from around the country: badly flawed indigent defense in a Georgia county; a judge removed from office in New York; a county in Mississippi wherein she believes not enough people are being prosecuted; and a Chicago case which she believes shows over exuberant prosecution. The Georgia and Mississippi cases are the strongest in her book, but they are also clearly aberrations. They aren't "ordinary." The Georgia case is based upon the lowest-bidder contract defender system which is probably the absolutely worst way to set up an indigent defense system. She makes the defender the focal point of her examination, making him the bad guy of the piece. The system was an assembly line wreck with plenty of blame to go around, primarily to the county leaders who didn't hire an adequate number of defenders or pay the defender enough to have sufficient support staff, but the defender's the bad guy. As you can tell, I wasn't too impressed with this. I also found Ms. Bach's astonishment that this attorney, once transplanted into a well-run office used the resources he was given and did a good job, a little disturbing. He knew what a boon the resources he had gained were and finally having them he used them.

Her strongest case, and most extraordinary, was the Mississippi non-prosecutions. I must admit to some surprise that this was included. It's not a usual part of the meta-narrative in these kinds of books. About the only thing more surprising would have been a section on over aggressive defense attorneys causing their clients to spend more time incarcerated because they were too caught up in the fight. In this case, the story is that a large number of charges aren't even being taken to the grand jury and therefore aren't being prosecuted. The prosecutor gives some reasons for this and his investigator seems to bear a good deal of the fault, but it's obvious that something is very wrong in that county. However, it's nearly impossible to shoehorn this into the "ordinary" category. Sure, there are jurisdictions where the LEO's grumble a little and there are always citizens who are upset because a prosecutor's office declines to prosecute certain cases, but it's not often the norm (if for no other reason than that most places could vote the bum out).

We also get a story in which a New York judges is removed from his bench because he failed to tell some defendant's of their right to an attorney and he placed people in a position of having to plead guilty or being held with a bond too high to make until their trial date. Now, it's always hard to get a good picture of what's going on with a judge because few people who practice law in his courtroom are going to say things publicly which might get them in trouble with the judge if he's not dethroned. Still, the case as presented wasn't different than what might be seen in any court. A defendant who "doesn't remember" anything, including his lengthy record, at arraignment gets a high bond. People choose whether to plead to time served (or less) in order to get out of jail prior to the date that all the witnesses could be brought to court for the trial. The one thing that was happening was that the judge was not giving everyone an attorney. I don't recall a statistic telling us the number of these cases over a certain period of time, but even in one case it would be clearly wrong. Still, with the case as presented (who knows what was actually going on and being said behind the scene), it looked like something where the judge should have gotten a warning and some training - probably even had another judge observe his court for a period of time - not something where the judge should have been removed. I think the problem here was that the demanded an open hearing and that he was being too honest about the way things actually work; as one of the people interviewed pointed out, this appears to be the reason he was actually removed. This was Ms. Bach's strongest case for "ordinary" injustice. A judge, apparently with a pro-defense reputation, sitting in his courtroom and on occasion sacrificing justice for efficiency.

The last case, the Chicago murder. I shan't go too far into this one except to say that, as I read through it, I realized that it was all spin. It was obviously a hard fought case and her assertion that it shows overzealous prosecution could have been spun exactly 180 degrees and argued that this is a case which shows how lengthy, almost never ending appellate processes can lead to muddling of the evidence enough to allow a man found guilty to go free without an actual showing of non-guilt. It can be argued either way and doesn't help her meta-argument.

In the end, I think Ms. Bach has made a good try in her first book. I think she would have been better served to have concentrated on one of the stories and written an entire book on it. Each story cried out for further exploration rather than being crammed into the argument of this book. As well, I was bothered by the amount of credence she seemed to give people whose self interest was to make the primary person in each section look bad. Maybe this is just the cynicism hammered into me after 10 years of practicing criminal law. In the end it's an average book which those interested in this area should find interesting, even if they disagree with it.