Yankees

So, I'm leaving my favorite restaurant after eating breakfast and there's a lady standing outside smoking and talking, in a very obvious Northern accent, on her cell phone.

"Yeah, it's supposed to get up to 93 degrees today. It's so hot you can't breathe. I don't know why anyone lives here . . ."

Is it wrong that I started whistling "When Johnny comes Marching Home" as I walked past her?

As a Male, I Must Protest!

When women this good looking show up in miniskirts, you should encourage them, not throw them out and charge the ones who set it up.

Are Catholics & Jews More Predisposed to Court Service?

No More Beer at the Outdoor Barbecue

At least not in Virginia . . .

We're counting down to 01 July 2010 when the new laws go into affect in Virginia. I've looked through them and most are just slight adjustments to the old laws. However, there's one which I think there'll be a lot of people violating. Ladies and Gentlemen, I present to you the law which requires you not to let your guests drink unless they are in your house:

7. Any person who keeps and possesses lawfully acquired alcoholic beverages in his residence for his personal use or that of his family. However, such alcoholic beverages may be served or given to guests in such residence by such person, his family or servants when (i) such guests are 21 years of age or older or are accompanied by a parent, guardian, or spouse who is 21 years of age or older and, (ii) the consumption or possession of such alcoholic beverages by family members or such guests occurs only in such residence where the alcoholic beverages are allowed to be served or given pursuant to this subdivision, and (iii) such service or gift is in no way a shift or device to evade the provisions of this title.

The bold part is what the General Assembly added, and YES that means that you cannot invite your buddies over and let them drink your beer outside as you barbecue and that your girlfriend cannot drink that glass of wine with you while you look at the stars on the back porch.

In fairness, I think they were probably trying to make it illegal for minors to drink outside the house, but that law is just a little too overly broad.

Review: The Good Guys

5 Second Review: The pilot is fun to watch, but we'll see if the concept can last.

30 Second Review: I really enjoyed watching the pilot on Hulu. It was carried along by its primary actors who make the ridiculous story and hackneyed story fun to watch.

In Depth: This is a send up of the traditional cop drama. Colin Hanks plays the young cop who is far too much by the book and gets himself in trouble because he can't keep himself from telling his superiors what they are doing wrong. He gets assigned to babysit a drunk older cop who is untouchable because once upon a time he saved the governor's son. The older cop, played by Bradley Whitford, stumbles through life with a cheesy 80's mustache (almost Tom Selleck in its epicness) in a semi-drunken haze, constantly complaining about how things aren't as good as they used to be, and assuming that every case he's involved in will turn into a major case. The thing is, the kid and the old-cop are assigned to the most trivial theft cases their boss can find for them. And yet, they keep ending up in a room with the second best assassin in the world . . .

It's a fun concept executed well. That will work well for a show or two, but it's going to have to evolve into something more in a short period of time to keep my attention. I hope it does.

Monday Nights at 9:00 p.m. on Fox.

Appeals Accepted by the Virginia Supreme Court April & May 2010

Case Number and Style followed by asserted errors:

092461 WASEEM ALI v. COMMONWEALTH OF VIRGINIA

1. The Circuit Court erred in denying appellant’s motion to dismiss the robbery charge, and the Court of Appeals erred in affirming the robbery conviction, because the evidence did not establish that the taking was accomplished by force or intimidation before or concomitant with the taking.
2. The Circuit Court erred in affirming convictions and sentences for both robbery and larceny from the person arising from one and the same act, and the Court of Appeals erred in affirming the two convictions arising from the same act.
3. The Court of Appeals erred in refusing to apply the ends of justice exception to Rule 5A:18 when considering whether appellant could be convicted of both robbery and larceny from the person arising from the same act.

092346 COMMONWEALTH OF VIRGINIA v. WELLYN FLORES CHAN

1. The trial court erred in holding that it possessed jurisdiction to modify a criminal defendant’s sentence over four years after the trial court’s entry of the final sentencing order in the case, where the 21-day period proscribed by Rule 1:1 had elapsed and where there were no applicable exceptions to the Rule.
2. The trial court erred in holding that the traditionally equitable writ of error audita querela is an available remedy in criminal cases.
3.Even if the writ of error audita querela is applicable to criminal proceedings, the trial court erred in issuing a writ of error audita querela under the circumstances of this case because it provided the defendant with a secondary, non-statutory remedy for ineffective assistance of counsel.
4.Assuming, arguendo, that the trial court relied upon the alternative relief requested, the trial court erred in erred in modifying the defendant’s finalized sentence through a writ of error coram vobis.

092402 LARRY HOOD v. COMMONWEALTH OF VIRGINIA

The trial court erred in relying on Va. Code §§ 37.2-901 and 907 to uphold the requirement that Hood had to choose whether to cooperate with the government psychologist before the appointment of counsel, in violation of the Due Process Clause of the Fifth Amendment to the Constitution of the United States, the Right to Counsel provision of the Sixth Amendment to the Constitution of the United States, and the Law of the Land provision in Article I § 8 of the Constitution of Virginia.

100143 ANGELA MARIE CAROSI v. COMMONWEALTH OF VIRGINIA

The Trial Court erred by finding sufficient evidence for the three counts of child cruelty and by denying the Appellant’s motion to strike.

092600 GEORGE LAVOR RIDDICK, III v. COMMONWEALTH OF VIRGINIA

The Court of Appeals erred when it affirmed Defendant's two convictions for violating Virginia Code Section 18.2-53.1 when his two convictions for violating Virginia Code Section 18.2-53 barred them due to Virginia Code Section 19.2-294 and "double jeopardy."

100202 ANTHONY DALE CRAWFORD v. COMMONWEALTH OF VIRGINIA

1. The Court of Appeals erred in holding that an affidavit in support of an ex parte petition for a protective order is not “testimonial” within the meaning of Confrontation Clause cases, in violation of Anthony Crawford’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
2. The Court of Appeals erred in holding that the principle of “forfeiture by wrongdoing” applies to permit extra-judicial statements in cases that arise in domestic relations contexts, even without specific proof in this case that the Defendant killed the victim to silence her or to keep her from testifying against him, in violation of Anthony Crawford’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
3. The Court of Appeals erred in holding that the Court of Appeals is not bound by the trial prosecutor’s concession that the affidavit was “testimonial.”
4. The Court of Appeals erred in applying the “right result/wrong reason” doctrine to uphold the conviction.
5. The Court of Appeals erred in failing to address Appellant’s argument that the evidence was insufficient to sustain the convictions of abduction with intent to defile and rape.

092455 GUY ANTHONY BANKS v. COMMONWEALTH OF VIRGINIA

The Court of Appeals erred in finding that the seizure of Mr. Banks’ jacket was lawful under the Fourth Amendment as authorized by Banks’ consent.

100160 ANTOINE LANIER HALL v. COMMONWEALTH OF VIRGINIA

1. The trial court erred in finding that sufficient evidence was presented by the Commonwealth to support Mr. Hall’s conviction under an indictment charging him with felony escape by use of force or violence.
2. The Court of Appeals of Virginia erred by concluding that there was no abuse of the trial court’s discretion in this matter.

100209 DARYL LAMONTE GRAVES v. COMMONWEALTH OF VIRGINIA

The trial court committed reversible error by allowing Willie Javar Williams' hearsay allegations made to Sergeant Shaw concerning defendant into evidence.

New, Permanent Virginia Bar Card

Every year Virginia issues us that Bar card, good for one year only. Now they're switching to a permanent card. We're going to get a temporary card this Summer after we pay our dues and then they're going to give us the permanent one in December.

All I can say is that I hope it is pretty dang idestructible. The current cards are hard to tear, but after a year in my wallet the ink on them is pretty much destroyed. I need that new card every year.

New Cases Added to Virginia Criminal Cases & Law

April's cases have been added today. May's should follow shortly.

The Great Escape

So, I knew the young dog was getting out of the house and I figured it was through the window I leave open for the cat, but I didn't know exactly how he was doing it until I was sitting there and he decided it was time to get outside. By the time I was able to get my camera he was already on top of the cat's tube and this is what happened next.

Methinks the Judge is a Hunter

Ripped from the Headlines (or at least the Volokh Conspiracy): A judge in Texas didn't exactly see the immediate emergency in a hunting cabin without toilet facilities.

How do you prove consent?

I was checking the searches which brought people to CrimLaw over the last day and came across "what are the best ways to prove consent?" The best way to prove consent is by video taping the transaction as your lawyers, in your presence, put together a contract which is signed by both you and the other party. Here's the best video I know of demonstrating that principal in action: "Sexual Consent"

Quote of the Week

DefenseAttorney looks around my office at the Saint Ives plaque (patron saint of lawyers), certificate for working security on a JPII visit and statue of Michael defeating Satan. Then he turns to me and says, "You're Catholic. That explains why you're so tough about the law."

At the time my reply was, "Well, it's worked for over 2,000 years."

After DefenseAttorney left, I started thinking. If I'm tough because I'm Catholic, just imagine what what I'd be like if I was a Jewish prosecutor. With 2,000 years of a faith behind my religion I'm tough; with 4,000+ years behind me I might be a force of nature.

Virginia Fixes a Flaw in the Appellate Process

So, I'm reading through the Virginia Appellate blawgs and I find out that the Virginia Supreme Court has changed the Rules as they apply to appeals. Now, I haven't had a thriving appellate practice as a deputy commonwealth attorney, but I still have some memories of writing these things back in the day. So, I wanted to check to see if they fixed what I remember being broke.

You see, there's a technicality in Virginia law which serves no purpose but to trip up the unwary and allow petitions for appeal to be dismissed without any consideration of substantive matters. In the Court of Appeals the petitioner is required to list "Questions Presented" (5A:12). However, in the Virginia Supreme Court the petitioner is required to list "Assignments of Error" (5:17). In fact, the Supreme Court's rule goes even further and states that "[o]nly errors assigned in the petition for appeal will be noticed by this Court."

It was a distinction without a difference and basically required that the questions presented to the court of appeals had to be changed into a statement. For instance:

Was the trial judge wrong when he ruled the sky was gray?

would become

The trial judge was wrong when he ruled the sky was gray.

It may have had the distinction of being the dumbest thing in the entirety of the appellate process. However, anyone who forgot to make this superficial change got his appeal rejected out of hand. It was a particularly nasty trick on those who were new to appellate work. After all, one would not expect appellate rules to have superficially different formats which could lead to the dismissal of an appeal out of hand. Newer attorneys who had an appeal rejected by the court of appeals would change the heading and put any arguments in they had to address points made by the court of appeals and send it off only to have it rejected because they hadn't made this unimportant change.

BUT NO LONGER

The Supreme court has rewritten rules 5:17 and 5A:12. Both rules are more extensive than they were before, but the biggest change is that now the court of appeals now has the same requirement as the supreme court. Both use "Assignments of Error."

Now, these rules don't come into force until 01 July, but thank goodness they fixed that flaw.

Are there automated DMV's somewhere in Virginia?

Well, not the ones I've been to, but apparently some judges on the court of appeals think they are.

In Swanson v. Commonwealth, MAY10, VaApp No. 0163-09-3, a decision addressing the "opened the door" rule of evidence and the "present mental state" exception to hearsay, the court is addressing Defense Counsel's attempt to get some statements in after Prosecutor had elicited a statement from Witness that Defendant had said he went and got a title at DMV.

"Contrary to [Defense Attorney's] assertion, however, [Witness] did not testify that appellant indicated he had spoken to anyone at DMV. Instead, Farmer simply testified that appellant said he 'went to the DMV' – without giving any indication that appellant talked to anyone there."

OMG! Somebody at the appellate court has figured out how to go to the DMV without having to speak with anyone there! How?!? I demand to know how to go to the DMV and not have to talk to at least three people before you can get anything done. Quit holding out on us judge; there's a lot of us who would pay good money to know your secret. Or maybe they have a special automated DMV just for judges . . .

Quantum Mechanics for the Defense

VIRGINIA:

IN THE CIRCUIT COURT OF PITCAIRN COUNTY

COMMONWEALTH v. JOHN SMITH
CR12000541

MOTION TO DISMISS

Comes now the Defense and moves this honorable Court to dismiss these shoplifting charges on the following grounds:

It is well accepted that our universe is subject to the laws of physics.

A principal of quantum physics is that observables are indeterminate until they are observed. See e.g. Schrodigger's Cat.

Mr. Smith entered the WonderMart on 13 June, 2012.

Per quantum physics, whether Mr. Smith would commit the crime of shoplifting a portable computer was an indeterminate matter. It was possible that he would and possible that he would not.

The uncertainty was resolved when Officer Jones observed Mr. Smith pick up the Acer netbook and run out the door of WonderMart with it.

Therefore, it was Officer Jones' observation which caused the actual reality of the theft.

An agent of the government, a police officer, is the direct and sole cause of the theft, because his observations caused various indeterminate possibilities to congeal into a set reality wherein a theft occurred.

WHEREFORE, as observation by an officer of the government is the sole cause of the reality of the theft, the Defense moves for an immediate dismissal.

FURTHERMORE, Mr. Smith moves for a writ of prohibition forbidding police officers, bank agents, store employees, family members, and all others from taking any actions which would cause future potentialities to develop into actual crimes. These actions include, but are not limited to, surveillance, video taping, inventorying items, asking Mr. Smith if he stole an item, and any other action which would cause an observation that something illegal had occurred. Clearly, these acts would all coalesce indeterminate possibilities into a reality at Mr. Smith's expense and therefore must be prohibited.

I ask for this:

_______________
Robert Greene, Esq.
Wolfram & Hart, LLC

Renico v. Lett

Standards for reviewing a State trial court's decision to declare a mistrial (green = trail court / blue = state appellate courts / red = federal appellate not to mess with / black = federal appellate will overturn). Renico

Quote of the Week

Defense Attorney has just spent the 5 minutes explaining to the judge why my interpretation of a statute is wrong and 15 minutes explaining to the judge why his interpretation of the statute is right. Then he points at me in, raises his voice, and voice quavering states in high dudgeon:

"And, judge, I don't think a representative of the executive branch has any business telling a representative of the judicial branch how to interpret something written by the legislative branch!"

Virginia's New Laws

Okay, the Virginia General Assembly has had its two sessions and passed a bunch of laws which have been signed by the Governor. I went through and tried to get all the laws which are criminal law in nature and you can go read them all at Virginia Criminal Law & Cases (clickthru is in the right column). Here are some of the more interesting.

---------- [ NONE OF THESE ARE IN EFFECT UNTIL 01 JULY 2010 ] ---------

19.2-130.1 is being changed so that if a judge issues a capias and orders the defendant held without bond the magistrate cannot give that defendant a bond when he is arrested.

18.2-472.1(G)(2) is being changed so that the certificate of analysis only has to "provided with" the notice of right to demand the analyst's presence instead "attached to" it.
----------
COMMENT: Yes, someone must have actually stood in court and argued, "Why yes, Judge, the Commonwealth gave me timely notice and gave me both pieces of paper. However, they didn't staple the papers together and therefore they can't introduce the analysis."
----------


19.2-386.16(B) is being changed so that if you abduct someone or pander a juvenile prostitute you lose your car.
----------
COMMENT: Cuz that'll keep'em from doing that.
---------


9.1-903(J): If a sex offender doesn't have a legal residence he has to register the location of his cardboard box.

54.1-3420.1: Pharmacists have to keep track of who is getting schedule II drugs and keep it for a year.

18.2-308: You can now take your concealed weapon into the bar with you, but if you drink alcohol it is a class 2 misdemeanor. HOWEVER, federal, state, and local law enforcement officers are not subject to this law (because officers are all immune to alcohol).

18.2-308: It is not illegal to have a concealed firearm in a car if it is locked in a compartment or a container.
----------
COMMENT: Think goodness. No more weapon concealed in the locked glove compartment charges.
----------


46.2-857: It is reckless driving for two motorcycles to ride side by side in one lane, UNLESS the drivers are two officers on duty.

46.2-857: It is okay for cars in separate lanes to be side by side when one is passing the other.
----------
COMMENT: You've got to be kidding me. It's currently illegal to drive side by side while passing right now (law in effect 01 July 10)? What court is buying that argument?
---------


46.2-301.1: If you know someone has no license and that he has previously been convicted of driving without a license and you allow him to drive your car, you have committed a class 1 misdemeanor.

19.2-73(B): An officer with probable cause that a driver has driven under the influence within three hours can legally arrest the driver even if he did not see the driving (the law used to require the arresting officer to have seen it).

46.2-341.18(E): If someone with a commercial driver's license commits manslaughter in a commercial vehicle he cannot have a commercial license for 5 years.
----------
COMMENT: Really? Do we want someone who has committed manslaughter in a commercial vehicle to be back out there in another one?
----------


4.1-309.1: It is no longer legal to drive a school bus filled with kids while possessing or drinking alcohol.
---------
COMMENT: Sadly, this has to be in reaction to specific facts which occurred somewhere.
----------


29.1-521.1: If you bait an area to keep hunters from being able to hunt there legally, it is a class 3 misdemeanor.
----------
COMMENT: Hmmm . . . If you are interfering with hunters around these parts your worries probably shouldn't center around whether or not you are going to get a class 3 misdemeanor.
----------

Justified

5 second review: Justified? In what?

30 second review: They want me to believe that's Kentucky?

Full review: This show is the perfect example of why you should film a TV show where you claim it is taking place.

The guy on the left, Marshal Raylen Givens, screws up in Florida. He gives a scumbag 24 hours to leave town and when the scumbag doesn't Marshal Givens shoots him dead. Of course, the scumbag drew first, so Givens is on the right side of the law by a razor thin margin. The result? The Marshal Service decides to move him back to Kentucky, where he grew up. From that point forward we get to see him hook up with a murdress, interact with his ex, do a superior job of marshaling, and shoot a bunch more people.

All-in-all, it's probably a slightly above average cop drama. However, it is unwatchable if you live, or have ever lived, in Kentucky. The people who wrote these scripts have never been to Kentucky and don't know anyone who has been. They just seem to pick locations out of thin air and throw them in. In the first episode they go from Lexington to Somerset to get a beer (that's a 2 hour drive for a beer). And they travel from Lexington to Harlan County like it's a 30 minute drive down the road (it's 3 hours). I don't know what city that is that they are trying to pass off as Lexington, but it's not even close. At least look at a photo or two of Lexington so that you can realize that THERE AIN'T ANY BIG STEEL BRIDGES IN LEXINGTON. There sure as heck isn't one on Tates Creek Road; take my word for it - I've driven that road a few times in my life. In fact, nothing I've seen in this show looks like Kentucky.

And then there's the people. What accents are those which are being thrown around? I've never heard them before. And, I haven't heard a Kentucky conversation from a single one of them. By that I mean that nobody's mentioned basketball - not a single person. This is a State wherein I was watching an NFL playoff game last year and the local channel cut in and broadcast a high school basketball game instead. People in Kentucky talk about basketball. No, that's not quite right. People in Kentucky talk incessantly, all the time, in every conversation, every day about UK basketball. They criticize the coach. They weigh the skill level of players. They talk about possible recruits. They live in expectation that the coach will get a national championship every three or four years. If he doesn't they will rip apart every second of every game, talking about every stupid thing the coach did. Heck, they'll even do this if he's a winning coach; it is impossible for a UK coach to satisfy the fans. They are everywhere. That Marshal's office in Lexington would have UK stuff on at least half the desks and cubicle walls. About 40% of the people in town - and in the counties - would be wearing UK clothes every day. Apparently, in whatever alternate reality this show takes place in basketball doesn't even exist.

C'mon. If you were going to shoot in Genericsville, Pennsylvania, you should have just put your show's location in Pennsylvania. It'd be a better fit. Since a good deal of your "location" shots are just green screen through a car window, you could at least have driven through Kentucky/Lexington/Harlan County to get those shots. Yeesh.

The Big 4 copyright 2010 Ken Lammers Jr

ATTENTION ALL DEFENSE ATTORNEYS: I am hereby copyrighting each and every one of the Big 4 reasons that defendants can't possibly go to jail for the crime they've committed. Should your client use or attempt to use Job, Family, Illness, or I Found God - or any variation or combination thereof - there shall be a $5.00 fee payable to Ken Lammers Jr. Payment shall be for each individual usage of a particular Big 4 reason, even if they are used in combination. As well, the fact that the Big 4 neither caused the judge to dismiss all charges and apologize nor led to any better result than the defendant could have received otherwise does not waive or abrogate the duty to pay for use my copyrighted material.

Payment is acceptable by cash, cashier's check, or money order. Checks on a defendant's account shall not be acceptable. However, payment from an attorney's trust account on behalf of the defendant shall be accepted.

BE ADVISED: There is no explicit warranty and no implicit warranty in the usage of my copyrighted Big 4 reasons. Use of the Big 4 is at your own risk and results shall vary depending on numerous conditions outside the control of the holder of the copyright.

The Guilt Project: Rape, Morality, and Law

I rate this book a 3 out of 5. As a whole concept it fails, but if you read it like you would a blog - section by section without an expectation of a strongly coherent whole - it can provoke thought.

For the first two sections of this book, I was searching for some coherent theme. Expecting the book to be either about the nuts and bolts of representing rapist on appeal or a screed against the evils of the system, I found a book wherein there's a lot of stream of thought which wanders between philosophy, sociology, reality, theory, and personal affect. It keeps harrying off into stream of consciousness every time you turn a page - or even start to read a new paragraph. Generally the thoughts are interesting, but they only link together with the barest of threads.

Before I had finished reading the Introduction and Section I: Guilt and Me, I was convinced that this was a blogger who had decided to put all her blog posts together as best she could into a book. I stopped and looked up the author sure that I would find a public defender blog tied to Vanessa Place. I was wrong.

It turns out that Vanessa Place is actually an author of poems and "experimental literature." Apparently, her most famous writing is a 50,000 word 177 page book Dies: A Sentence. Why is it famous? Because she only uses one period in the entire book (on page 117). Here's an excerpt:



Not my cup of tea, but not terrible either. Still, between this and the way the Intro and Section I went, I was beginning to wonder about this lady writing appellate briefs.

No worries, in the next three sections she shows that she knows the her stuff inside and out - the way you can only know it if you've spent the time researching and arguing a subject. It's hit or miss; some sections are extremely informative while others are expositions on philosophy and sociology.

I'm torn by this book. I found parts informative and some downright fascinating. If the subsections had been broken down and been individual blog entries I would be full of praise for an insightful, well thought through blog. But as a whole book it just doesn't hang together. Balancing these two impulses out, I have rated it a 3.

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

[addendum]For the record, I was given a courtesy copy of the book by a publicist, but later bought a copy for my Kindle.

Well, are you?

Breaking News: Drug Bust

DEA Official Announces Successful Drug Bust On Son's Room

The Other Guys

I can hardly wait for this movie:

Bubonic Bob & The a Smart Judge

Bubonic Bob was back in court a couple weeks ago. Bob earned his nickname from the fact that no matter what punishment a judge or prosecutor offers he has a condition which will preclude it. On the other hand, none of these conditions have yet stopped him from going into the local S-Mart and trying to leave without taking his items through that pesky checkout line. Most recently, his conditions also hadn't stopped him from writing a bunch of bad checks to about 7 local stores. I didn't see the original trial, but somebody gave Bob a break because his prior record should have gotten him at least 6 months. Instead he got 10 days in jail and 30 hours of community service. And therein was to be found the problem. It had been over a year and Bob hadn't done a single hour of his community service.

Probation officer testified that Bob had claimed that knee and back problems kept him from doing the usual trash pickup. Probation Officer had told Bob to bring in some sort of letter from the doctor proving his ailments. Bob put Probation Officer off for over 9 months - nary a medical record in sight - and finally Probation Officer decided to violate Bob. Since that time there'd been two continuance granted by the court so that Bob could get the paperwork and bring it to the court. Probation Officer wants either jail or at least that Bob be forced to do his community service.

Then Defense Counsel calls Bob. Bob has the magic ticket held triumphantly in his hands. He gives it to Defense Counsel who gives it to the judge. Prosecutor has to ask to see it. I couldn't see it, but from Prosecutor's reaction it was probably the same thing we see all the time from a doctor who writes something to get a patient to quit bothering him: a general letter which states there is some problem, but doesn't really state that it is serious or how the problem should limit the activities of the defendant.

Bob testifies that he can't do the physical labor of picking up trash because of his knee and back problems. On cross, Prosecutor points out that the letter doesn't say that. Bob counters that the letter says he shouldn't over-exert himself because of these problems and that the doctor told him that meant not being on his feet for over 20 minutes. Prosecutor asked why Bob hadn't brought the letter in when Probation Officer asked for it. Bob counters that he couldn't afford to pay the doctor for the letter - "No matter why you go to see Dr. Smith, it costs $750 just to get an appointment." Asked why he couldn't do community service where he could just answer phones Bob counters that his man-ear would only allow him to do that for an hour at a time. Asked why he agreed to community service Bob states that he didn't; he just agreed to do some jail and the judge stuck the community service on the order after he'd already gone to jail. Asked if he had any problems just doing jail time Bob states that the problem with that is that they won't let him have his pills for his "sugar", blood-pressure, and back pain _ "The last time I was in for a week and it took 3 months to things back to normal, cuz they wouldn't let me have my pills." Then the judge and Bob have a conversation about whether Bob smokes or not. Bob bobs and weaves a bit, but then claims he quit a year back because he's got "OCP" (I think he actually meant COPD - I've not met anyone who stopped because of river blindness). Watching Bob testify is watching a maestro in action. He may not be the most educated guy in the room, but he's mentally agile. There's an answer for everything and for everything there's an answer.

You can just see by the demeanor of Probation Officer and Prosecutor, they think that Bubonic Bob is going to skate yet again. Bob himself is looking rather smug. He's answered all the questions and his bastion of diseases is going to yet again serve him well. Then the judge weighed in.

"Mr. Bob, there's a tree in front of this courthouse. Probation Officer is at this courthouse on Tuesday, Wednesday, and Thursday. On each of these days of the week, you shall come to the courthouse and report to Probation Officer. Then you shall go down to that tree and sit and count cars. From 9 to 12 you shall count the cars which turn left from Broad Street onto 16th. From 1 to 4 you shall count the cars which turn right from 16th Street on to Broad. At the end of the day you will turn over the paper with the number of cars to Probation Officer. You will repeat this until you have completed all your community service hours."

Brilliant! I mean, I wouldn't want it for 99.999% of offenders, but it's something Bob will have a hard time getting out of medically and it will drive him nuts just sitting there all day (the tree is in the middle of a big lawn where nobody goes). Do I think he'll actually count cars? Nope. He'll make up numbers. However, I also think that he "misremembered" when he told the judge he quit smoking a year ago. Basically, the judge sentenced Bob to sit someplace where he can't talk to anyone but is in clear sight so that he can't smoke and prove that he lied to the court.

Maybe I'm just happy because I thought Bob was going to get away with it again. And, when I think about it rationally, Bob probably got off too light. Still, this is the coolest sentence I've seen in a while.

Quotes from The Guilt Project: Rape, Morality and Law

Got this book to review (also bought the Kindle version). I haven't finished reading it yet and I'm one of those strange people who won't actually review a book without reading it. However, here are some interesting quotes from the book so far.

On sex with a drunk woman equaling rape: "The real snake is the thesis that women are like children, and like children, must be protected from themselves."

Explaining why women can't consent to prostitution under the "domination theory": "Women who voluntarily engage in prostitution have been involuntarily recruited by daily patriarchal practices and institutional ideology: a woman whores because it's a man's world."

"Feminism and prostitution, those twin administrations of women's bodies, each claiming province of their hearts and minds, have been conjoined since the Victorian era."

"In the too-liberal imagination, each of the Seven Deadly Sins is attributed to a mutilated Me: the glutton is only starved for affection, the violent lashes out to reach out, and the murderous just doesn't get the rest of us."

According to my Kindle, I'm 57% of the way through the book. I'll comment on the meat of it when I get to 100%.

Padilla & the Prosecutor

So, how does Padilla v. Kentucky affect those of us on the prosecution side of the aisle?

It's more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let's look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:

National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).

Now, let's compare that to the real world courts which have rejected this idiocy (and which Justice Stevens buries in a footnote):

United States v. Gonzalez, 202 F. 3d 20 (CA1 2000); United States v. Del Rosario, 902 F. 2d 55 (CADC 1990); United States v. Yearwood, 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States, 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F. 3d 1251 (CA10 2004); United States v. Campbell, 778 F. 2d 764 (CA11 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183 Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban, 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552, 555 A. 2d 92 (1989).

So, on the the one side we have actual courts which recognize the reality. On the other side we have a widely disparate set of habeas-bait "standards" (invariably impossible to follow: see this post), never used procedural books (I'd even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don't have time to waste with that organization), and a law review article (you're kidding?!? tell me you're kidding). On one side are 11 courts (including Kentucky) which have held the opposite of Justice Stevens decided (btw, where's the circuit/State supreme courts split that required the federal supreme court to step in address this issue?); on the other side are the best sources which Stevens' clerks could scrape up by combing through the law library. This just screams of results oriented rationalization.

Immigration effects has been a major meme that has been thrust upon criminal practitioners for a while now. It seems like every CLE has one hour in which a professor or immigration lawyer stands in front of the room and lectures on consequences of convictions. Meanwhile, the practitioners browse the web, read newspapers, work on that brief due Friday (you know - what practitioners do at every CLE). I've actually tried to pay attention and come to one conclusion. There is no way that anyone who is not steeped in the labyrinthine disaster zone which is immigration law can possibly advise a defendant properly. To quote myself:

Then came a section on collateral effects of a criminal conviction on aliens. What did I take away from this section? If you're a defense attorney and your client is an alien, call an immigration attorney because you will never be able to figure out the morass that is immigration law.

IMO, the best a practicing defense attorney can really advise an immigrant client is that a conviction might effect his immigration status. More than that and the attorney is really speculating.

The problem is compounded by the reality on the ground. Immigration officials are stretched thin. I currently work in an area where there aren't a large number of immigrants in the system. However, before I came here I was in a locale where it was not unusual to see several immigrants per day in court. I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, "Yes, the feds can deport, but they don't want to be bothered unless there is a violent felony." Of course, it wasn't always phrased quite so blandly. So, the attorney in Padilla's case may have been giving what was basically reality based advice based upon experience. I haven't seen the feds swoop in and deport people therefore, they shan't do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla's case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.

So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren't going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn't notified. Hopefully, judges will start adding the question to the plea colloquy, "Are you aware that if you are an immigrant a conviction may effect your immigration status?" Unfortunately, I can't do anything to effect that change. However, I can change the language in my plea agreements (whether or not Scott will advise his clients to sign them). Henceforth, all my plea agreements will contain the following language:

Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.

I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.

Virginia Supreme Court Arguments in April

Case name followed by assigned error(s):

Newby v. Commonwealth, No. 091247:

The Court of Appeals erred in upholding the trial court’s error in denying Newby’s Motion to Strike the Evidence, both at the conclusion of the Commonwealth’s evidence and at the conclusion of all the evidence, on the grounds that the evidence did not prove that he had committed any portion of the offense alleged in the City of Hampton, Virginia.

Herndon v. Commonwealth, No 091265:

The Court of Appeals erred in affirming the trial court’s admission of the certificate of analysis contained in Commonwealth’s Exhibit 1 into evidence, because the item described in the certificate of analysis was not shown to be the same item the officer submitted to the laboratory.

Cokes v. Commonwealth, No. 091507:

The Court of Appeals erred by holding that the trial court did not abuse its discretion by denying Cokes’ request to withdraw his jury trial waiver and to proceed with a jury trial.

Midkiff v. Commonwealth, No. 091793:

The trial court erred in admitting into evidence, over Petitioner's objection, images which were not taken directly from the hard drive of the computer seized from Petitioner's home because they were neither the best evidence of the images nor reliable evidence of the images.

Carter v. Commonwealth, No. 091895:

The Commonwealth failed to prove the grand larceny indictment, that paint was stolen from the store.

Appeals Accepted by the Virginia Supreme Court March 2010

Case followed by the assignment of error(s):

Sidney Jr. v. Commonwealth, No. 092313:

1. The Court of Appeals erred by upholding the trial court's refusal to suppress the evidence where the petitioner was detained without probable cause or a reasonable suspicion in violation of his rights under the Fourth Amendment of the U.S. Constitution and comparable parts of the Virginia Constitution, and where the evidence was obtained as a result of this detention.
2. The Court of Appeals erred by concluding that the anonymous tip and dispatch to police supported the seizure of the petitioner, where the tip and dispatched information were not from an informant whose reliability was established and the information provided in the tip was not predictive and was otherwise insufficient to support the seizure of the petitioner.
3. The Court of Appeals erred by concluding that the tip and dispatch information supported the seizure of the petitioner where the mere fact that a warrant was on file for Allen Sidney did not make the otherwise unreliable tip reliable enough to support the seizure of petitioner under the circumstances of this case.

Perry v. Commonwealth, No. 092418:

1. The Circuit Court erred in denying Appellant’s motion to suppress evidence obtained in violation of his constitutional rights.
2. The Court of Appeals erred by considering a new justification for the illegal search, which was never presented to the trial court.
3. The Court of Appeals erred in finding that Trooper Weidhaas had probable cause to arrest Appellant at the time of the illegal search.

Bennett v. Commonwealth, 092085:

1. The appellate court erred in finding the Commonwealth had proven at least one prior firearms conviction thereby imposing a sentence on the firearms charges of three and five years, respectively.

McGhee v. Commonwealth, No. 091274:

1. The Court of Appeals erred in ruling that the trial court did not err in denying the motion to suppress the evidence because there was no probable cause for arrest and because the search of the car was invalid.

Commonwealth v. Moirris, No. 092163:

1. The Trial Court erred in its decision finding authority to apply the Writ of Coram Vobis, or alternatively the Writ of Audita Querela, as an appropriate remedy.
2. The Trial Court erred in granting Appellee relief under the Writ of Coram Vobis.

Bly v. Commonwealth, No. 092064:

ERROR: The trial court erred in not granting the defendant a new trial when it was discovered that exculpatory evidence was not disclosed to the defendant prior to trial.

CROSS ERROR: The Court of Appeals, although correctly finding no prejudice as a result of the non-disclosure, erred by failing to also find that Bly did not establish the second requirement of the Brady test: that the non-disclosed information either was itself admissible evidence or would have led to evidence that was.

Carroll v. Commonwealth, No. 091987:

1. The Court of Appeals erred in finding that, at the close of the evidence at appellant’s revocation hearing, appellant did not argue that the trial court could not find him in violation of probation because of the terms of any plea agreement.
2. The Court of Appeals erred in holding that it could not consider the plea agreement terms of appellant’s Alford plea as a basis for reversal of the trial court’s revocation, because appellant did not ask the Court of Appeals to consider whether the trial court’s decision finding that appellant was in violation of his probation was a breach of the terms of the plea agreement between appellant and the Commonwealth.
3. The Court of Appeals erred, based upon the facts of this case, in affirming the Court’s revocation of appellant’s probation because appellant refused to accept responsibility in sex-offender treatment by admitting to rape based upon his Alford plea as a matter of law.
4. The Court of Appeals erred in holding that the trial court did not abuse its discretion in denying appellant’s request to consider a reasonable alternative treatment modality, such as individual sex-offender therapy, in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated.

New Cases Added to Virginia Criminal Cases & Law

March's appellate cases have been entered into Virginia Criminal Cases & Law.
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