Where's The Novel?

Back in November, I started writing "Ambush in Barlette" as part of the November novel thing.  I cranked out eleven chapters that month and then continued with one in December and one in January.  Lately, I've had a couple people ask me when the next installment is coming and I have to say that it's not likely to be any time soon.

The first reason for this is that CLE season has started.  This year I will be teaching two separate CLE sections (three hours) myself and be participating in a third.  Two of these involve the changes in criminal case law and one is about the new criminal criminal laws passed by the General Assembly.  In order to do this, I have spent a lot of time summarizing case law and will do the same for the new statutes once the legislative process has gone far enough that it makes sense (the first few months other are entirely too many bills that are buried in committee).  Consequently, work on the novel has waned, although I do try to do a little work on it every day.

The second is that I am not writing linearly at this time.  I started with a very basic outline back in November; it had all of eight lines.  I wrote from that point until I got to appoint that a something more was needed.  A little stymied, I watched a some YouTube videos  about how to write a novel and got a few ideas.  I sat down and wrote out a more substantial outline, although it is still informal and less than two pages long. I also started working on the end of the novel so that I'd have exactly what I am working toward nailed down.  So far, I have written the epilogue and I shall start on the climactic scene soon.  Somehow, I don't think that most people would appreciate being told how everything ended before they've read the earlier chapters.  When I get back to the point of writing chapter 14 I'll post it.  It may just take me a while to get there.

The future: If I ever finish Ambush, I realize that it will need at least a couple passes through retuning it.  Maybe then I might do something as foolhardy as submit it to a publisher.  Who knows if I'll ever get that far, but I see Ambush as the first book in a trilogy.   The second book would be Death to Us All and the third would be Last Man Standing.

Jeopardy, Evans, & the New Guy

Yesterday, I walked up to the most newly minted attorney in the office and asked him this question:

"You're in a larceny trial and the Commonwealth has finished presenting its evidence.  The defense makes a motion to strike the evidence because the Commonwealth must prove his client was wearing a blue shirt in order to prove larceny.  The judge agrees that the blue shirt element must be proven and the Commonwealth has not proven it. Therefore, the judge dismisses the charge.

Clearly, there is no 'blue shirt' element to the crime of larceny.  Has jeopardy attached?"

He looks at me for a couple seconds, obviously trying to figure out if it's a trick question. "Jeopardy attaches as soon as the trial starts."

Me: "Congratulations, you've now proven yourself smarter than the Michigan Supreme Court."

It's a simple answer to a simple question which some very smart people worked very hard to make complicated.  A couple of days back, in Evans v. Michigan, the United States Supreme Court chose simplicity over complexity.

In Evans, the defense attorney alleged that an element to a crime existed and must be proven by the prosecution.  The judge agreed the element must be proven and had not.  He then entered a directed order of acquittal.  The judge was wrong and the element he ordered acquittal over was not a part of the crime alleged.  On appeal, the Michigan Supreme Court overturned the judge, ruled that jeopardy had not attached, and remanded for a retrial.

The argument which won the day in the Michigan Supreme Court goes something like this: When there is a procedural error, a person can be retried (generally mistrials).  When the judge added a nonexistent element to the crime and based his decision to acquit solely on the nonexistent element that judge committed a procedural error.  None of the actual elements of the crime had been resolved and therefore the defendant had not been put again in jeopardy and could be retried.

The U.S. Supreme Court's answer to this?  We have already made it clear that when a judge acquits because he misreads or misapplies a criminal law jeopardy attaches and adding an element is misreading or misapplying a criminal law.  Therefore, jeopardy attached.

Apparently, the Michigan Court's line of reasoning had been adopted in several different jurisdictions.  To be fair, it's not a bad bit of reasoning.  It's an end around and runs contrary to my instinctual understanding of Double Jeopardy, but there are plenty of areas in the law where that occurs.  This is one of those situations we find every so often where either answer could be correct and we just need someone to make the final decision.  Personally, I think the US Supreme Court got it right.

The result would be the same in Virginia.  It seems that in most States when a jury trial is in progress the motion made by the defense after the presentation of the prosecution's evidence is for a "directed acquittal" based on a failure of some sort by the prosecution.  However, in Virginia the motion made at that point is a "motion to strike the evidence."  A motion to strike at mid-trial is a motion for the judge to exclude all the evidence presented and dismiss the case without jury consideration.  The motion is a mixture of common law and Rules of the Virginia Supreme Court.

A motion to strike out all the evidence of the adverse party is very far-reaching and should never be entertained where it does not plainly appear that the trial court would be compelled to set aside any verdict for the party whose evidence it is sought to strike out.  Green v. Smith, 153 Va. 675, 679 (1930).

Rule 1:11. Striking the Evidence.

If the court sustains a motion to strike the evidence of either party in a civil case being tried before a jury, or the evidence of the Commonwealth in a criminal case being so tried [jury trial], then the court shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.

If the court overrules a motion to strike the evidence and there is a hung jury, the moving party may renew the motion immediately after the discharge of the jury, and, if the court is of opinion that it erred in denying the motion, it shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.

Rule 3:20. Summary Judgment.

Any party may make a motion for summary judgment at any time after the parties are at issue, except in an action for divorce or for annulment of marriage. If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to judgment, the court shall enter judgment in that party's favor. Summary judgment, interlocutory in nature, may be entered as to the undisputed portion of a contested claim or on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment shall not be entered if any material fact is genuinely in dispute. No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall agree that such deposition may be so used.

Under Green's standard, the judge can only strike the evidence if it is so flawed that he would have to overturn a jury verdict of guilty.  Thus, the the determination is the equivalent of a directed acquittal.

House of Cards

Years back, I watched the British show "House of Cards" and I was impressed.  Now I have watched the first season of the US version and I'm even more impressed.  You have to have Netflix to watch it and if you don't you should pony up a one month $8 subscription to watch it (you can cancel immediately after you are done).  There are 13 episodes in season 1 and, God willing, enough of you out there will watch it so that Netflix will see the series to its end (probably three seasons like the British version).

In some ways, the American version follows the British version.  For instance, in both the main character (British: Francis Urquhart / American: Francis Underwood) is the majority whip and, after helping someone else get elected to the highest office in the country, expects to be placed in major position in the cabinet.  Instead, they are both betrayed by the person they helped get elected and this becomes the major motive for everything they do thereafter.  As well, both manipulate a young female reporter by seducing her (with the full knowledge of their wives).

There are major differences as well.  In the American version we see much more of the wife's life than I remember from the British and yet, I get the feeling that the American wife is much more out of the loop than the wife in the British version.  The American has a lobbyist play a prominent role. Of course, the actual political positions and organization of the governments are very different; obviously, the British Francis would never be involved in running someone for governor.  And, it was clear from the beginning that the British Francis was evil.  The American Francis?  You'll have to watch to figure that out.

Things that impressed me:  (1) Francis Underwood is a Democrat.  I admit that I was surprised by this.  Urquhart was a Conservative and I figured this, combined with the normal proclivities of Hollywood and the current composition of the House, would mean that Underwood would be a Republican.  Of course, Underwood does have to be the same party as the President, but since they clearly went out of their way to make the President in the show not the current occupant of the office they could have filled the position with a Republican.  All-in-all, it is something of a bold choice that Underwood is a Democrat. (2) They do an excellent job of breaking the fourth wall.  It helps you see into the thoughts of Underwood without causing the story to break stride.  (3) This is incredibly well acted by all involved, particularly by Kevin Spacey as Underwood.  (4)  It's a very rich world in which layer upon layer of depth is uncovered as schemes and counter-schemes interact.  (5) With the exception of one glitch (see infra), this is amazingly well written.  It's hard not to just keep watching until you get to the end of all 13 episodes and when they were over I wanted more (never fear season 2 has already been ordered by Netflix).  I tried to limit myself to two episodes a day, but I must admit that I spent a good portion of Sunday watching the last five.

Things that annoyed me:  (1)  They made Underwood a Southerner - from a State where (in the real world) all the representatives save one are Republicans.  You'll note that no one else in the entire show speaks with a southern accent.  It's an annoying reliance on the corrupt/evil Southern politician trope and I admit to being disappointed by its use.  It would have been better if they'd made Underwood from Illinois or Maine or Oregon and thus avoided the stereotype.  (2) Apple, Apple, and more Apple.  I don't know how much Apple paid for product placement, but WOW.  I don't think the show ever goes fifteen minutes without an iPhone or iPad or Mac or Macbook Air being on the screen - with the Apple symbol prominently displayed.  Every congressional office has Macs in frame on the desks of staffers and the congressman.  By halfway through the season, I was waiting for the bum on the street to pull out an old orange iBook out.  Nobody in this world has even heard of Linovo or Samsung, although Blackberry does shoehorn its way in by the end.

These first two are just annoyances, but there one time when the show goes off the rails.  Underwood goes back to the Military Academy he graduated from and spends the night drunk with his best friends from back in the day.  (3) In the midst of the drunken stupidity, there's a scene where he and his best buddy from back in the day talk about their homosexual flirtations/relations when they were at school together.  I just about wanted to scream and throw something at the screen.  The scene felt incredibly forced and out of place.  It also felt like the writers sat around (having never served) and thought "Hmmmm.  What would be the natural outgrowth of the closeness of the bond that forms between young men under military discipline? Why, it must be homosexuality!"  Worst of all, it did absolutely nothing to further the plot.  It may get tangled in during future seasons, but it had the distinct feeling of a unique moment meant to stand alone.  If it is tangled in later it will probably be because of people like me saying "WTF?" and the writers feeling like they have to justify that scene.  Hopefully, they'll go the opposite direction and just leave that scene where it died.

Overall:  This is the best thing I've watched in a long time.  When Netflix started doing its own original programming most people got excited about the restart of Arrested Development.  As for me, I waited with baited breath for this and I have not been disappointed.  Now I'm waiting with just as much anticipation for the next season to get here.

BTW:  Unlike the British version, the second season will still be House of Cards.  There are a some reasons for this.  First, Underwood is nowhere near his final goal yet.  Second, the American series is providing a much more in depth look at how all things are happening - primarily by paying more attention to secondary characters. Third, there is no monarchy against which the American Francis can stand in antithesis.  Thus, you can't really do To Play the King as an American show.

Thank You BBC

There are some days I am just embarrassed by American television.  I don't mean the purposefully stupid stuff like "reality" TV.  I mean the news.  This morning I was getting dressed when a buddy texted me that the Pope was giving up the Holy See.  I flip on the TV and go to news channels. NOTHING.  MSNBC is accusing some senator of wanting to kill kids with machine guns.  Fox is accusing some accusing some representative of wanting to kill every child yet to be born.  Not a single word is being spoken about the Pope.  Next, I try EWTN, the Catholic Channel.  Surely it will have switched from its normal fare of impressive masses and substandard programming for something this important.  Nope.  Some guy is standing in front of a green screen, putting on a show I could probably do in my living room.  Where do I finally find the news?  The BBC.

Thank goodness for the BBC. Everyone else can go on babbling about useless, meaningless stupidity and label it news, but no one seems to have told the BBC that actually doing news on news shows isn't in vogue anymore.  I watched a solid hour of well reported stories on what is happening, why Pope Benedict XVI is stepping down, and putting it in historical perspective.  Then, as the day went on, I kept checking the news on Flipboard (where I follow several news sites) and the BBC was doing a thorough job of analyzing the situation and covering the reactions around the world.  Everybody else?  Maybe one or two stories. Maybe.

I've been a fan of the BBC ever since I was waiting in a tent for the Desert Storm to kick off.  I had the most expensive short wave radio that the PX sold in my ruck sack and I spent hours chasing down English language newscasts from around the world.  In the end, while it was fun to listen to broadcasts from Japan and Germany and Finland and the Vatican, the only worthwhile channel to listen to was the BBC.  Heck, most of the time the BBC would tell us more about what was happening than the official briefs that came down from the chain of command.  I am here to tell you that if you play the Greenwich time signal you will still get my attention every time.

Anyway, thank you BBC and bravo for your sustained ability to actually cover the news.  Somebody's got to because it's pretty clear our Yankee news channels won't.

$5,000 - $10,000 - 30 Days

Okay, I get the reason for the thirty days, but why exactly did he bump the bond amount from $5,000 to $10,000?

Taking the Word "Brief" a Little Too Seriously

This is the shortest brief I have ever seen. It's from Mitchell v. Commonwealth, JUL12, VaApp No. 1400-11-1, and it is the entirety of the actual argument:

DISCUSSION OF THE ISSUE

THE COURT ERRED IN DENYING THE DEFENSE MOTION TO STRIKE THE COMMONWEALTH’S CASE BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT USED A FIREARM IN THE COMMISSION OF A ROBBERY. ([P]reserved at App. 75-78, 110-112).

Code § 18.2-53.1, in pertinent part, provides that: “It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit . . . robbery.

In the instant case, the only evidence presented to establish the use of a firearm was the testimony of the clerk that the defendant had his hand under his shirt when he told her to give him the money and there was a protrusion in her direction. Immediately afterwards, the defendant leapt onto he [sic] counter, and with the same hand the clerk testified that he had up under his shirt, grabbed money from the drawer. The defendant never stated he had a gun, no gun was ever seen by either clerk, and the evidence in fact proved beyond a reasonable doubt that he did not have a gun in his hand.

As you might guess, the Court of Appeals was not terribly pleased.

Balancing the Power: So You Want to Provide Checks to the Prosecutor . . .

 How do you provide a system of checks and balances for prosecutors?  It's a question which has been debated rather heatedly since the suicide of Aaron Swarz.  Every blog seems to have had some say in the matter and today, an Article in the Atlantic summarized a law review article and several blogs to provide eight points which have been proffered as means of clipping the wings of prosecutors.

Most of that which was offered in the article  is somewhat silly and the plea bargaining suggestions would make things worse.  In fact, the only idea which makes a great deal of sense is the one cribbed from Orin Kerr.  If you really want to take power away from prosecutors the first thing you would do is eliminate stacking of charges.

Here are some actual things you could do if you were seriously interested in reforming the system:

A)  Limit stacking of charges.
B)  Eliminate minimum punishments, whether mandatory or suspendable.
C)  Have juries sentence if they find a defendant guilty, but limit their maximum sentence to the amount possible by adding the maximum sentences of the two offenses with the highest possible punishments.
D)  In cases where juries do not sentence, limit the sentence on each offense convicted to a range of between one year above and one year below the the cumulative of the two highest average sentences, in the last ten years, given by juries for the offenses charged.

Limiting the stacking of charges would be the first step in this sort of reform.  Here's the best example of this sort of statute I can come up with off the top of my head.

19.2-9999  Repetitive Charging
(A) A defendant can be indicted on no more than five charges proceeding from related events, occurring in the same location, involving the same instrument, or affecting the same victim.
(B) This section shall not limit the number of murder, wounding, injury, or rape charges which can be brought against an individual.

The first sentence would generally limit stacking too many charges, but I think (B) is needed for scenarios such as a bank robber who kills eight hostages or a rapist who abducts a women for seven days and rapes her one or more times each day.  These are not the kind of things that an anti-stacking statute should limit.

Eliminating minimum punishments - in particular mandatory minimums - takes a strong tool out of the hands of prosecutors. Minimums give the prosecution a strong opening position to negotiate from and their removal will change the dynamic quite a bit.

Jury sentencing is the ultimate way of determining what the residents of a State believe to be the appropriate sentence for a crime.  Picture a case in which a jury has just convicted a man of second degree murder.  Having no minimum punishment (as supra) and a maximum of forty years, the jury would determine what it thought to be appropriate considering the defendant's prior record, aggravating facts, and mitigating facts - all presented in a bifurcated sentencing hearing.  This places a lot of power outside of the reach of both the prosecutor and the judge.

Sentencing without a jury would be dead simple.  The average punishment for specific crimes could be published every year in a set of tables available to everyone (except sentencing juries so that results are not tainted).  Consider someone charged as follows:

CHARGE	MAXIMUM	JURY AVG
Shoplifting 3d	5 years	8 months
A&B Police Officer	5 years	6 months
Felon Possess Ammo	5 years	1 month
Possess Oxycodone	10 years	11 months
Possess Marijuana	12 months	15 days

The two highest are Shoplifting 3d (8 months) and Possess Oxycodone (11 months) for a total of 19 months.  If the defendant pled guilty, or was found guilty by a judge, he would know that he was facing a sentence between 7 months and 31 months.  If he chose to take a jury he would know that he was facing a maximum of 15 years in prison and that juries sentencing somewhat similar defendants had averaged a sentence of 26.5 months.

For this to work properly - particularly in the federal system - the average sentence for each offense would not be that handed down initially by the judge, but the sentence after any adjustments downward were made while the defendant was serving his time through things like a 5K motion.  Otherwise the system is highly manipulable.

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Do I think the above would make a perfect system? No. But, then again, I don't believe that a perfect system is possible.  However, if you wanted to provide checks and balances to the prosecution, this would probably be the direction you'd want to travel.

Virginia Alcohol Laws that Apply to Life

There are all sorts of laws out there that apply to alcohol, covering everything from its sale to its manufacture to its use. I've been asked recently to review those criminal laws which affect those who actually purchase and drink beer, wine, or ardent spirits in Virginia and after a quick review I came up with these.

DUI

The one everyone knows is what most people cal DUI, or driving under the influence.  However, in Virginia the crime does not occur when a person drives a vehicle, it happens when a person "operates" one.  Thus, if a person is behind the wheel, with the keys in the ignition, she is guilty. The statutes forbid a person under the influence of intoxicants to operate a motor vehicle, engine, train, or moped (18.2-266) and watercraft (29.1-738).  Generally, operating a vehicle under the influence is punished by up to 12 months in jail and up to a $2,500 fine, with various amounts of incarceration being mandated depending on certain factors (ie: presence of a minor in the car or level of alcohol in the driver's system).  If a person operates a vehicle under the influence three times in a ten year period, the third is felony with a maximum punishment of 5 years.

Where It Can be Consumed

It is generally illegal to drink in public (4.1-308) or be intoxicated in public (18.2-388) and doing either can result in a $250 fine.  As well, if one gives alcohol to guests visiting his home, the alcohol must be consumed in the residence (4.1-200).

Involving Minors

It is illegal for anyone under 21, interdicted, or intoxicated to buy, or be sold, alcohol (4.1-304).  It's also illegal to buy alcohol for someone you know (or should know) is a minor.  Obviously, it is illegal for a minor to drive with any alcohol in his system (18.2-266.1).  It is also illegal for a school bus driver to drink or possess alcohol while driving the bus with kids on it (4.1-309.1).

Interdicted

Anyone who has been interdicted cannot be sold alcohol (4.1-304) and cannot possess it (4.1-322).

Disorderly Conduct

It is illegal for someone, while under the influence, to disrupt a funeral, government meeting, religious meeting, school, or school activity (18.2-415).

Concealed Weapon

It is illegal to carry a concealed weapon while under the influence and it is illegal to drink alcohol at a place which serves it while carrying a concealed weapon (18.2-308).

Hunting

It is illegal to be under the influence of alcohol while hunting (18.2-285).

Baby

If, within 6 weeks of birth, a doctor diagnoses harm to a child that was caused by prenatal use of alcohol he must report it (63.2-1509).


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Yes, I know there are probably a dozen - if not dozens - of other laws out there which apply to the consumption of alcohol.  However, these are the ones which popped out at me.  If any others pop into your head feel free to add them in the comments below.

Ambush in Bartlette: Chapter 13

[Chapter 1] . . . [Chapter 2] . . . [Chapter 3] . . . [Chapter 4] . . . [Chapter 5] . . . [Chapter 6] . . . [Chapter 7] . . . [Chapter 8] . . . [Chapter 9] . . . [Chapter 10] . . . [Chapter 11] . . . [Chapter 12]


Saturday morning Jerome woke early. To be more accurate, from the moment he got into bed at about one thirty he tossed and turned in the bed, troubled; he dozed off a couple times, but each time he started awake, torn between the need for sleep and the certainty of a visit if he slept before making a difficult decision. Finally, he got out of bed at about five and spent an hour or so praying the rosary. This calmed him down considerably and he put some thought into what actions he should take today.

He needed to tell someone what Deputy Carr said the night before. However, from the things the Deputy's brother said, it could be disastrous to talk to any local police. He recalled that some of the news reports he read about the ambush stated the FBI was providing "technical support" in the investigation, but he did not know what that meant exactly. Would the FBI be the right people to go to and how could he get in contact with them anyway? Even if he could get in contact with someone there, how should he approach this situation? He thought about it for a while longer and decided that his best option was to call the Bishop's office and see if they could help him contact the FBI.

Jerome had the Bishop's "direct line", which actually went to whichever young priest had been pressed into service as the Bishop's aid this year. He called and a bleary voice answered. After identifying himself, Jerome explained that he needed help contacting the FBI. That woke the man up on the other side of the phone and after a little scrambling Father Ostrowski got Bishop Mannion on the line.

After Jerome explained the situation, the Bishop promised that he would have someone (that meant Father Ostrowski) contact the FBI and make sure an agent was talking to him by noon. Then Bishop Mannion gave Jerome his marching orders.

"When the secular authorities contact you, you will make it clear to them that the Church, and you as its representative will not cooperate in the murder of another. You know where the Council of Bishops, and the Church as a whole, stands on this issue."

Holding his phone, Jerome began to consider the possible outcomes of that order. "How far do you wish me to push the secular authorities on this, Your Excellency?"

"You must look to the Lord as he leads you in this matter. The taking of a life is a highly immoral part of the culture of death. We resist that with as much strength as the Lord gives us."

"Yes, Your Excellency, I understand." And Jerome did. That was a highly worded and spiritually grounded way of telling him to endure jail if he must, but not to cooperate with the FBI until such time as he had assurances that the death penalty was off the table.

For the next couple hours, Jerome prayed some and considered what he would say or do once the FBI called. While at BC Law, he only took two courses on criminal law. However, he distinctly remembered one of his professors adamantly telling the students that officers could lie at will to get the information they needed, but that if a federal agent could construe something you said to him as lie you got convicted of a felony and went to federal prison. He got the computer out that the Bishop's office had given him and researched these points, confirming both rather quickly. However, her also tripped across another fact: a prosecutor was ethically forbidden to lie. Armed with that bit of information, he called Richmond back and spoke to Father Ostrowski again.

By this time, Martin Ostrowski was already a very frustrated man. Apparently, the FBI was not being cooperative. He had finally been able to get into contact with someone in the Richmond office, but they would not tell him the name of any FBI agent involved in the Bartlette County investigation, much less how to contact one. Now, Jerome was adding another level of complexity. He told Ostrowski to make sure that any FBI agent who wanted to question him came to the meeting with a prosecutor.

Faced with the extra task, Father Ostrowski, to his credit, did not whine or make excuses. He took the message and told Jerome that he would pass it on if he could ever find a means to contact someone to pass it on to. Then Jerome let the young priest get back to his mission, smiling slightly at the exasperation he heard in the man's voice.

At a quarter past eleven, Jerome got a call from a man identifying himself as Special Agent Carlos Mazzota. The initial conversation was very short. The agent asked what Jerome needed to speak to him about and Jerome told him that while he was visiting Deputy Carr, the deputy woke up and made a statement which seemed to indicate who the attackers were. Special Agent Mazzota immediately asked whom Deputy Carr identified. When Jerome refused to give him that information the special agent did not get angry or loud; in fact, his voice flattened and fell into a practiced, cold rhythm.

"Father Tolton, under federal law concealing evidence of a felony is a crime and you could spend five years in prison for it."

Jerome's nerves spiked at the threat, but he clamped down on them. "I'm not hiding evidence Special Agent Mazzota. I am merely refusing to reveal that which was obscured by circumstances."

"Sir, you are concealing your knowledge of a felony from a federal officer. That's obstruction of justice. It may also be misprision."

This time Jerome's nerves did not jangle quite as much. "You can threaten me all you want. However, until such time as I talk to a federal prosecutor and sign a letter of use I will not turn this information over. I will not lie to you, nor will I hide something you could have otherwise found. I simply won't cooperate."

There was a pause from the other side. "Okay. I'll see if I can scare up one of the A U S A's. Understand something though, I don't like the idea of putting a priest in prison, but I will if I need to. You need to cooperate. It's time to render unto Caesar."

If he had heard that once, Jerome had heard that a thousand times. Every public official who wanted him to do something quoted that line and hearing it again actually put him back on more comfortable ground. "I am offering to pay unto Caesar, but the rest of that sentence requires me to pay unto God what is God's. All I am asking is that someone who can guarantee certain conditions be present so that I can do both."

With that the FBI agent grunted, told Jerome that he would call back as soon as he could, and hung up without any exchange of pleasantries. Jerome sat there for a moment before starting his computer back up. He needed to do some more research. Could he be thrown in prison for simply not telling an FBI agent something? And what in the world was 'misprision'?"

About ninety minutes later Special Agent Mazzota called back. He told Jerome that he had located a federal prosecutor and they would meet Jerome at the federal courthouse in Abingdon, Virginia at three. It took Jerome ten minutes to find directions to the courthouse on his computer and then he cranked up his truck and was on the road. As he drove, he called the Bishop's office and spoke to Father Ostrowski yet again. He filled the aid in on what what he was doing; he also told Ostrowski that he thought there was a good chance he would be in jail before the day was over. Ostrowski reciprocated by telling him that Special Agent Mazzota called about an hour earlier and spoke to the Bishop. Father Ostrowski was not privy to the conversation, but the Bishop was perturbed enough that he had Father Ostrowski calling around in an attempt to find a criminal defense attorney who would answer his phone on a Saturday. None had so far, but Ostrowski promised a call to Jerome as soon as he had more information. Jerome arrived in Abingdon with dark thoughts of an impending imprisonment at the forefront of his brain.

And promptly drove right past the courthouse - twice. To be fair, he expected a big marble building with columns or something of the like. He finally figured out that a short, brick building which looked like a post office was actually the courthouse. Then, he drove around a bit to find someplace to park, eventually leaving the truck in the parking lot of some sort of center for the arts on the other side of a large, fancy hotel from the courthouse. He arrived ten minutes late to find an annoyed looking man in his mid-thirties and a woman who appeared to be in her forties waiting for him. Both were dressed in perfectly tailored suits which looked like they had just been dry cleaned.

They recognized him as he walked up - not too hard since he was wearing the collar. Of course, the man was Special Agent Mazzota. The woman introduced herself as Assistant United States Attorney Ann Taylor. Jerome apologized for being late and the woman smiled at his explanation.

"Yeah, we get that a lot. The first time people come looking for the courthouse they expect something big and impressive and they get . . ." She let her voice fade as she waved her hand at the building. "The funny thing is that apparently there used to be a unique and impressive courthouse, but they tore it down and gave us this. Not sure why - before my time."

With that, she turned and walked in the glass doors, followed by Mazzota and Jerome. Inside, they were met by a man wearing khakis and a polo shirt which had a five pointed star in a circle embroidered over his heart. Ms. Taylor stopped to introduce him.

"This is Marshal Bates. He's here because somebody has to make sure we don't plant bombs in the courthouse and because if we aren't able to trust local law enforcement - something your actions have made Carlos suspect might be true - then we may have to lean on his people for muscle."

The four of them walked down a hall and went into a small room with a table and several chairs around it. As soon as they sat down Special Agent Mazzota turned to Jerome.

"Okay, you've got us all here. Tell us whatever you thought was so important it couldn't wait until Monday."

Instead of answering him, Jerome reached into the manila folder he had brought with him and pulled out a piece of paper. He handed it to Mazzota. "Here's the letter of use which I told you I needed a prosecutor for. Once I have a signed copy of this I will tell you what I know."

"This is garbage. You can't expect to be able to tell us . . ." In mid sentence, the FBI agent stopped when the prosecutor put her hand on his arm and motioned him out of the room. She excused herself as well and the marshal followed her. Jerome found himself sitting in the room alone.

It seemed like he waited for an eternity. Jerome did his best to stay as calm as possible, but his body had definitely decided this was a fight or flight circumstance and the adrenaline pumping into his system was not helping his nerves. He tried to say the Prayer to Saint Michael, which he had memorized specifically for this situation, but he kept foundering after "Sancte Michael Archangele, defende nos in proelio." This was probably because the rest of the prayer was about rebuking and defeating the devil and Jerome was actually dealing with people of good intent. Perhaps they had been misled down a wrong path, but he did not think of any of them as actively pursuing an evil intent. In the end, he fell back on an old favorite.

"Lord, make me an instrument of your peace.
Where there is hatred, let me sow love.
Where there is injury, pardon.
Where there is doubt, faith.
Where there is despair, hope.
Where there is darkness, light.
Where there is sadness, joy.

O Divine Master,
grant that I may not so much seek to be consoled, as to console;
to be understood, as to understand;
to be loved, as to love.
For it is in giving that we receive.
It is in pardoning that we are pardoned,
and it is in dying that we are born to Eternal Life.
Amen."

The Prayer of Saint Francis summed up the driving forces of Jerome's personal theology. It always comforted him and provided a reminder of Christian purpose. He repeated the prayer twice, said a decade of the rosary, and returned to his original prayer. His head remained bowed in prayer when the federal agents came back into the room.

He finished a last few lines of the prayer before raising his head. The attorney and marshal looked uncomfortable; the FBI agent looked skeptical. After a moment, they continued into the room and sat down. This time the prosecutor took the lead.

"Father, we've just spent a good bit of time talking to your boss. You realize that he's willing to sacrifice you in order to make a point? He doesn't like the death penalty, so he's willing to let you go to jail?"

"Ms. Taylor, we are both willing for me to make that sacrifice. Both of us serve God and God does not favor the destruction of any of his created, even those who have committed grave sin."

She nodded her head and gave him a look that mixed exasperation with irritation. "Yes, I thought you might say something like that. So, I also spoke to my boss and he approved the agreement. Here's a copy of your document. Understand, if you balk any further we will consider the agreement null and void and you to have obstructed justice. We will prosecute if you do not live up to the agreement you have made."

With that, Ann Taylor handed over a copy of the paper in her hand to Jerome and others to the the FBI agent and the marshal. Jerome took it and checked it over to make sure it was the same paper he handed to Ms. Taylor. It was simple to check because the entire agreement because it consisted of a single sentence:

"The United States government agrees that neither it, nor any of its political subdivisions, shall seek the death penalty for any deaths related to the firefight and explosion which took place on the 18th day of July in this year of Our Lord."

Below the sentence was Jerome's signature and Ann Taylor's along with a line where Ms. Taylor had written in the date. It was all there and everything was in order as far as Jerome could tell. He settled back and described the events of the night before. They had him repeat it at least ten times, asking him questions about it each time. Most of them wanted answers that Jerome did not have. He did not know where the deputy's brother lived. He did not know who "Brownie" was exactly. He did know what a "melungeon" was when the prosecutor asked, but only because he had looked it up on the internet: "a tri-racial, micro-minority group found exclusively in the Appalachian Mountains."

The questioning drug on for well over an hour before the meeting finally broke up. Everybody shook hands and the federals walked Jerome to the front door of the courthouse. At the door, the FBI agent told them he wanted to talk to Jerome alone for a second. The prosecutor asked if it was something she needed to be part of, but he told her it was just about security concerns and she stayed inside as the agent walked Jerome out.

"Father Tolton, what you've given us probably isn't going to break the case wide open, and it certainly doesn't justify what was signed away today." He raised his hand to halt Jerome before he could interrupt. "Yeah, I know. You have obligations to your church and she's probably right," he nodded his head back toward the prosecutor, "when she says the current administration wasn't going to sign off on this as a capital murder case over Catholic and liberal opposition." Special Agent Mazzota's tone left no doubt what he thought about that. "Anyway, you should not go back to Bartlette County. If local law enforcement is involved in this, you will not be safe. They probably don't know about this yet, but eventually, we'll have to involve at least Virginia State Police and there will be leaks. Too many of the troopers and locals have worked together for too long for it not to happen."

"I can't." Jerome began. "I've got . . ."

Mazzota cut across him. "Don't give me that 'man of God' crap. That collar doesn't make you bullet proof. This is starting to look really bad and if they get wind of you they won't hesitate to make a Black, Catholic Yankee disappear, whether he is a priest or not."

Jerome fixed the FBI agent in his gaze and spoke more firmly. "I am going back to Bartlette. I will be careful about it, but I will not flee. I have both a duty to the Church and to God and I will neglect neither."

The two men stood staring at each other for several moments before the FBI spoke. "I ought to put you in protective custody right now. Everybody in the world would go nuts if I did though. Besides, it would tip our hand too early." He reached into his pocket and pulled a card out of his wallet. "Here. That's got my direct number on it. If anybody from law enforcement other than FBI shows up, you call me before you go with them. Avoid local law enforcement as much as possible. We don't know exactly what's going on yet, so we don't know who all is involved. You're being an idiot. I can't stop you from being an idiot. All I can do is try to mitigate the damage." With that, the special agent turned and walked back to the courthouse door. A second later, Jerome started walking back to his truck.

Sunday passed uneventfully. In fact, Jerome spent most of the day in another parish. The priest in Holy Family parish was visiting a sick relative so Father Gabe covered his Saturday vigil masses at Saint Joseph in Grundy and Saint Mary in Richlands and Jerome agreed to cover the Sunday masses. This meant that Jerome was up six in the morning and on the road by seven. He arrived at Saint Elizabeth in Pocahontas, Virginia at eight-thirty. At nine he held mass for twenty-three people. Maybe that was a normal turnout; maybe it was extra because people wanted to check out the visiting priest. Jerome never could tell in these rural towns and it made little difference. The Church took its duty to minister to rural areas seriously and if this church only served ten people that would be ten people who would be abandoned by the Church otherwise. Consequently, individual churches here in the mountains were not parishes unto themselves; they were all part of a larger parish and the priest rode a circuit, driving from county to county, town to town in order to have mass at each church. The only problem with this system was that it meant the priest had to leave fairly quickly after mass ended at one church so that he could get to the next church in time and he was always a little late at the next church. Jerome stayed to shake hands and exchange pleasantries with the parishioners at Saint Elizabeth for about fifteen minutes and that was exactly how late he was in getting to Saint Theresa in Tazewell. The parishioners took it in stride and five minutes later he got mass started. After that mass there was a parish lunch which Jerome stuck around for and it was well after four by the time that he got back to the rectory of Saint Berlinda in Bartlette County.

On Monday morning, Special Agent Mazzota called Jerome at seven in the morning. Mazzota told him that two agents, one from the FBI and one from the State Police, would come around at eight and drive him to the State Police office in Wytheville, Virginia. At five before eight a man walked in with in a well worn jacket and tie and introduced himself as Special Agent Gilliam of the Virginia State Police. He showed Jerome his badge and identification and they left immediately - barely giving Jerome time to yell to Father Gabe that he was going. In the SUV Jerome was introduced to FBI Special Agent Slemp. The three of them left on the two hour drive to Wytheville.

The building they finally came to was a square red brick edifice with inset glass windows that looked like they were tinted black. The agents walked him into the building and left him in a conference room with no widows. Just short of twenty minutes later two different men walked into the room. The first was Special Agent Mazzota and the second, older man introduced himself as Captain Fraley, the division commander in the Fourth Division. Jerome had no idea what the Fourth Division was, but since the Captain came in with the lead FBI agent, he assumed the police man must be fairly senior.

"Sorry to drag you out here, Father, but we had to get you out of Bartlette. We had some things happened on Sunday which are going to cause more things to happen in the next couple days and you were in too much danger to leave there."

As Jerome started to speak the man raised both his hands in a halting gesture. "I understand that you don't want protection. Unfortunately, things are too dangerous right now for us to pay that much leave. Whether you want to be or not, you are in our protective custody until further notice."

With that, the older man turned Jerome back over to the two agents who had picked him up at Saint Berlinda. Jerome had pictures of being locked in a jail cell dancing through his head, but protective custody eventually boiled down to him being put up at a hotel with the agents in the room next door. The telephone in the room was disconnected and they took his cell phone. Jerome was reduced to watching television or praying. After watching a half hour of people screaming at the screen "No Whammy" and hitting plungers for random prizes, he concluded that television was just as worthless as it ever had been and settled down to read from the bible that the Gideons had so helpfully left in the drawer of the bed stand. That Monday was passed in prayer, reading, and eating whatever fast food the agents brought him. By eight the tension of the early morning followed by the monotony of the rest of the day combined and he fell into a sound sleep.

Tuesday morning, he woke at seven. It was the longest he had slept in years and he would have slept further except one of the agents had come into his room through the adjoining door. "Sorry to wake you Father. I thought you would want to see what's going on in Bartlette County." With that, he flipped on the TV and changed it to one of the news channels.

" . . . started early this morning and has been going on for several hours now. I've got to say, Darlene, that I've never seen such a concentration of federal law enforcement before. There seem to be at least a hundred marshals and FBI agents. They are all over the county knocking down doors and arresting people. So far, we think they have arrested at least four law enforcement officers and several civilians. The FBI spokesman, a Special Agent Mazzota, is refusing to comment as to whether this has something to do with the so called "Ambush in Bartlette" which took place a couple weeks back and led to the death and injury of several law enforcement agents and civilians."

They sat watching the television, flipping from news channel to news channel. All of them were filled with talking heads who had some basic information, but not much in the way of accuracy. About eight-thirty, one of the channels reported a rumor that there had been a shootout at one of the houses the federal agents raided. By nine-thirty the news channels were reporting all sorts of rumors about firefights as federal agents tried to arrest local law enforcement officials. One channel even reported a rumor that there was an armed standoff in Yared where the police had holed up in their station and were refusing to come out.

By eleven, federal officials gave in to the pressure of the escalating rumors and held a press conference. The United States Attorney for the Western District of Virginia spoke from a federal office in Abingdon flanked by high ranking men from the FBI, DEA, Federal Marshals, and Virginia State Police. The only person that Jerome recognized was the State Policeman; Captain Fraley of the Fourth Division stood there in his highly pressed gray and black uniform with highly polished silver bars shining from his collar. The only person who spoke was the U.S. Attorney.

"I have a prepared statement and will take no questions. At four this morning a joint task force of DEA, FBI, Marshals, the Virginia State Police, the Chicago and Detroit Police Departments, and the Florida Bureau of Investigations cooperated in Operation Ever Halt. This operation was a multi-state effort to stop a major pipeline for illicit drugs, primarily abused opioids and benzodiazepines. We took down major sources of the drugs in Florida, Chicago, and Detroit as well as a major warehouse for it in Yared, Virginia."

"In the Yared portion of the operation, we arrested a number of individuals, including three senior police officials in Yared and two deputies in the Bartlette County Sheriff's Department. Several other individuals in Yared were arrested for their part in the conspiracy to distribute drugs. Additionally, search warrants were served on the houses of each of these individuals, the Yared Police Department and the Bartlette Sheriff's Department."

"There are several rumors about supposed gunfights. Only one event involving the use of a firearm occurred. When the police entered the residence of one of the deputies the man ran to his closet. As the agents entered his bedroom the man had just grabbed the rifle and when he refused a command to drop it they tazed him. The rifle went off, but it shot into the ceiling, injuring no one."

With that, the U.S. Attorney shut down the press conference, promising a full press release by four that afternoon. A few reporters shouted questions, but the Attorney and other men simply turned and walked out of the room.

The next day his keepers drove him back to the red brick building, depositing him in the same conference room as before. This time Captain Fraley was alone when he came into the room. The Captain explained that they were going to release Jerome today because they thought they had everyone significant under in custody. Then he got to the meat of the matter.

"I understand, from Special Agent Mazzota, that your Bishop sent you down here to figure out what happened to Father Pahl during the ambush?" When Jerome nodded he continued. "Okay. I can't tell you much in the way of specifics, but here's a general summary of what happened."

"It was a multi-state drug ring, dealing mainly in pills. The pills were coming from several places around the country and were being stored in Yared. It was a really old-fashioned model of drug distribution which we don't run into often with pills. Anyway, the bad guys were tapped into the Sheriff's department and Yared PD. On top of that, while the Sheriff wasn't taking a payoff or anything, he turned a blind eye to their activities for years. However, they had a problem. Sheriff Minton has had a three heart attacks in the last four years and he probably won't run for office again."

"Everyone expects Captain Robert Ross - you probably know him as 'Bo' - to become the next Sheriff and he is honest and entirely too competent for these guys. So they decided to take him out. The firefight in the alley at the back of the courthouse was their second attempt; the first was aborted because Deputy Ross showed up at the ambush sight with a State Trooper in tow."

"At the courthouse, the two deputies escorting the Pahl brothers were supposed to stop in the alley with the prisoners and let them have a smoke. The attorneys and priest weren't supposed to be there. When Deputy Ross came out to get them moving again, the men in the car at the end of the alley were supposed to fire shots over everyones' heads and in the confusion the deputies in the alley were supposed to kill Ross and the two brothers."

"When the gunfire began, Ross ran to get the door to the courthouse open and one of the deputies in the alley shot him in the back. In fact, he seems to be the only person the ones in the alley shot. Everyone else was hit by gunfire from the end of the alley."

"The propane gas explosion was done on purpose. The guys at the end of the alley meant to kill everyone, including their co-conspirators. They shot a hole in the propane tank and threw a flare into the resulting cloud. They thought there would be a little explosion and they would then go down the alley and kill the people while they were stunned. Instead, they got a big explosion which blew half the Sheriff's Office down. They panicked and fled through the woods."

When Jerome tried to ask questions, the State Police Captain made it clear that he had given all the information he was going to about the ambush. He was not going to tell Jerome anyone's name or explain how the police got their information. And that was fine. While Jerome was curious about the ins and outs of what was going on, he had no actual need of that information. He knew, and could tell Bishop Mannion, why Father Ted Pahl was dead: he was killed by drug dealers because he was somewhere he was not supposed to be.

Outlier: Yankees kill Strangers and are Okay with Adultery?

"The triumph of a culture of honor helps to explain why the pattern of criminality in the American South has always been so distinctive.  Murder rates are higher there than in the rest of the country.  But crimes of property and "stranger" crimes - like muggings - are lower. . . The homicides in which the South seems to specialize are those in which someone is being killed by someone he knows, for reasons both the killer and victim understand. . . The statistics show that a Southerner who can avoid arguments and adultery is as safe as any other American, and probably safer."

Malcolm Gladwell, Outliers.

So, lets look at the implications in there for Yankees.  Apparently, y'all steal a lot of property from people you don't know and kill random strangers.  You also seem to be okay with people sleeping with your wives.  So now everyone know that when some random internet pop-up offers them the chance to sleep with cheating wives, they should make sure she's in New York City and go out of their way to introduce themselves to her husband beforehand.  Go ahead.  It's perfectly safe - the book says so.

This book has some really good points and a bunch of flights of fancy.  It's an argument that while nature has some effect, nature and chance are triumphant.  At its core it espouses a formula that goes something like this:

Adequate Talent + Upbringing that Teaches Social Interaction and Situational Mastery + Exceedingly Great Amount of Practice + Blind Luck = Becoming the Best of the Best.

or put more succinctly

Nature + Nurture + Opportunity = Success

I must admit that I'm not particularly shocked by this.  It's a pretty normal formula and he fleshes it out fairly well in parts.  The part about intellect alone not being enough to make a person successful is rather obvious, although he does point out that intellect needs to be above a certain point (nature).  The part about differences in behavior between parents of higher societal strata and lower is something I suspect most of us have observed (nurture).  The part about the rise of Joseph Flom, and Skadden Arps, because opportunity was left sitting on the table for him to grab by more prestigious firms was interesting and rang true (opportunity).

Yet, in other parts the book goes off the rails.  Most obvious is Chapter 6, in which the author starts out telling a well written and interesting story about a Harlan, Kentucky feud. He expands that to describe the many feuds of the past in the mountains.  Then he goes on to trace this to the group of immigrants which settled in the Appalachian Mountains.  This group of immigrants is held out as the reason that an "honor culture" developed in the mountains.

At this point he had me interested.  How was this leading to success?  Or, how was it changed to lead to success?  However, he never goes anywhere near either of these points.  Instead, he conflates the "honor culture" in the Appalachian Mountains with culture of the entire Southern United States and speaks of a couple of tests which test the behavior of Southern males.  It added nothing to the book's argument as a whole - or at least nothing that wasn't better explained in the next chapter about Korean Air's change from a very bad airline to a very good one via cultural changes - and it had the whiff of Northern bias.

The attempt to state that extremely successful Jewish lawyers were proximately caused by their parents' being successful in the garment industry doesn't quite make its case.  While this is is almost certainly correct in the but / for sense (parental success led to money and thus more opportunity for their kids), the attempt to connect lessons learned through success in the garment industry is tenuous at best - it seems the classic case of correlation not meaning causation.  I am proceeding here from a position of ignorance, but I do wonder whether the garment industry was the primary concentration of wealth in the Jewish community in the United States - or at least the primary concentration of wealth in the Jewish community which would see becoming a lawyer as a step up.  For instance, one could see bankers - to pick another stereotypical Jewish trade - thinking it more prestigious to bring their sons into the family business than making them lawyers.

The most far-flung would seem to be the "the reason that people with Far Eastern ancestors are better at math is that their ancestors raised rice" hypothesis.  He starts with some rational and interesting points.  Chinese numbers, written as words, are shorter and thus more easily remembered.  Additionally, the way Chinese numbers are said in their numerical progression is simpler and more logical.  Then he goes on about how difficult it is to raise rice and how serfs in Europe just didn't have to have much skill and precision in raising wheat (I am assuming that when he says "corn" he is adopting the European definition of the word).  He glamorizes Far Eastern serfdom as promoting skills compared to European serfdom, which crushed peasants.  None of it hangs together very well (except perhaps the first two points raised above).

All-in-all, the book's a mixed bag.  The core of it is interesting, but the fleshing out is flawed.  I give it a 3.5 out of 5.

Interesting Virginia Legal Opinions of 2012: Three Cheers for Justice Powell

Right now, I'm in the middle of catching up on my analysis of various crimlaw legal opinions which have precedential value in Virginia. I've caught up on the US Supreme Court and the Virginia Supreme Court and I'm about half way through the Virginia Court of Appeal's opinions.  As usual, there are a number of opinions which I disagree with, but that's fairly normal.  You see, I have this weird thing about consistent application of the rules of interpretation and I despise when courts interpret a statute "to further its legislative intent" (in other words, adding something the legislature did not put in there).

Anyway, the most interesting Virginia set of opinions this year was a tight race between the Baker and Foltz sets of opinions.  In both, there is badly flawed reasoning by both the Virginia Court of Appeals and the Virginia Supreme Court.

Baker v. Commonwealth, NOV12, VaSC No. 120252:

Baker is entirely Virginiacentric (unlike Foltz, discussed infra).  It concerns the ability to charge a felon who is constantly in possession of a particular firearm over a period of time with more than one violation of Virginia Code 18.2-308.2(A).  In other words, can a felon constantly in possession of a firearm be charged with possessing it more than one time?  Baker was convicted of possessing a pistol three times: the day he stole it, a later date when he tried to sell it, and a third date (the next day) when he actually sold it.


The pertinent part of the statute is 

It shall be unlawful for (i) any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm.

There's a lot more to the statute, including some fairly hefty mandatory minimum sentences, but those aren't the parts which apply to Baker.


In 2011, the Court of Appeals ruled that it was okay to convict Baker of all three possessions because they were in different particular time periods.  The Virginia Supreme Court rejects the Court of Appeal's rationale, but it then goes on to pull an unsupportable switch. While interpreting the charge of possessing a firearm, the VaSC suddenly switches to talking about transporting a firearm.

If the statute was meant to restrict the offense only to the receipt, initial possession, or even extended possession of the weapon, such a specific reference to the transporting or carrying of that weapon would be a frivolous and unnecessary addition to the statutory language.

 Remember, Baker was convicted of three possessions, not three transportations.  He would be clearly guilty of transporting the firearm three times (as he stole it and both times when he took it someplace to sell); he just wasn't charged with that.  It's a different crime.

Having linked the interpretation of "possess" to the interpretation of "transport" the court then creates from whole cloth a purpose (gravamen) which it assigns the statute in the name of the General Assembly.  The statute's purpose "extends to the prevention of the heightened danger each new instance of possession create" and therefore "a new offense of possession can be established with each separate act or occurrence that can be proven by the government."  Since possession continues even if the defendant does not have immediate, actual, physical possession of a firearm, See Wright v. Commonwealth, NOV09,VaSC No. 090308 (possession of firearms five miles away from defendant's location of arrest), what "act or occurrence" probably means is "if it is transported" and it most likely also means "if it is displayed."  Note that neither of those qualities are necessities of possession (and thus not part of its gravamen).

The Dissent (Justice Powell):

Justice Powell's dissent rips the Court's decision to shreds.  She points out that the Court entirely ignored the rule of lenity, that it apparently can't tell the difference between a disjunctive and a conjunctive (possess or transport), that possession is a continuing offense, and that there is a ton of case law contrary to the Court's decision.  It's well thought out and well written and (at least for the moment) makes Justice Powell my favorite Justice.

Personally, I'd like to take all the credit. During my years of standing in Chesterfield Circuit Court arguing cogent and well reasoned legal points for defendants I represented, some of it must have sunk in.  Of course, none of it worked at the time.  I generally remember Judge Powell regarding me with a look that seemed to say "What kind of malarkey and tomfoolery are you trying to sell me today, Mr. Lammers?"  Except, I just can't picture then Judge, now Justice Powell, ever using the words malarkey or tomfoolery.

Hi, Justice Powell!  Just kidding. (I figure I better include the disclaimer just in case she has Google tracking her name and telling her when bloggers in the deep, dark depths of the Appalachian Mountains are writing tomfoolery about her).


Foltz v. Commonwealth, SEP12, VaSC No. 110832:

The Foltz series of opinions consisted of a panel decision from the Court of Appeals in 2010, an en banc Court of Appeals decision in 2011, and a Virginia Supreme Court decision in 2012.  In Foltz, the courts found themselves on the horns of a painful dilemma.  There is absolutely no doubt that Foltz is a serial rapist whom the police caught in the act.  However, an unconstitutional use of a gps tracker on his car led to his capture and prosecution.  The police used a gps tracker on his car and when it indicated he was the rapist they started following him in person.  While tailing him they saw him put on a mask and attempt to rape a woman (they intervened).  The initial panel ruled that there is no societal interest in protecting the privacy of those activities that might occur in a car's bumper and upheld the conviction.  In 2011, the en banc Court of Appeals, sensing which way the wind was blowing on this constitutional issue ruled that even if the gps tracker on the car was unconstitutional, police engaged in personally tailing Foltz saw him trying to commit rape and therefore the constitutionality of the gps tracker was moot.   Of course, all this was before U.S. v. Jones, Jan12, USSC No. 10-125.  By the time the Virginia Supreme Court got its hands on the case Jones had made it extremely clear that gps trackers attached to chattels require a warrant.  Faced with this circumstance the Virginia Supreme Court ruled that all that testimony which was developed because the officers used a gps tracker was harmless error because the victim testified that Foltz was the person who tried to rape her.

The key problem the Foltz opinion has is that the victim would not have been able to identify Foltz without police intervention.  He was wearing a mask. Surely, if the mask came off during the attempt or the victim observed some other clearly identifiable trait that would have been mentioned somewhere in the facts presented.  The police intervention would not have occurred without the unconstitutional use of a gps tracker.  However, I do not have a transcript of the case.  Maybe there are independent facts supporting the VaSC's assertion of harmless error. It would just be nice if they were in the opinion.

US Supreme Court, The Right to Confront & What the Heck?!?

Okay, I'm researching double jeopardy rules and I trip across Williams v. Illinois.  I don't know how I missed this when it came out, but here's my summary:

Williams v. Illinois, JUN12, USSC No. 10-8505: (1) FOUR JUSTICES ONLY: At least in bench trials, inadmissible out of court statements (DNA analysis) which an expert talks about in explaining the basis for his opinion are not offered for their truth and therefore are not subject to the confrontation clause. NOTE: This relies strongly on Federal Rule 703 which does not track with Virginia Rule 2:703(b). (2) FOUR JUSTICES ONLY: Statements which fall under the confrontation clause have two characteristics. (a) They involve out of court statements having a primary purpose of accusing a defendant of a crime. (b) They involve formalized statements such as affidavits, prior testimony, or confessions. (3)(a) A DNA report from before the offender is identified is non-testimonial because its primary purpose was not to obtain evidence for the trial of the offender, but to catch an offender. (b) DNA evidence is not inherently inculpatory; it exculpates everyone but the offender. (c) Requiring the technicians who worked on preparing a profile to testify is economically expensive and would discourage the use of DNA in favor of less reliable evidence. (d) The defendant is not prejudiced because he can subpoena the technicians who prepared the profile. (4) JUSTICE THOMAS ONLY, rejecting both above but concurring: (a) A rule of evidence does not trump the right to confront, especially one that was created contrary to the common law rule it replaced. (b) The confrontation clause regulates only those statements with indicia of solemnity so that they are formalized testimonial materials, including depositions, affidavits, prior testimony, or statements from formalized dialogue such as custodial interrogation.

Okay.  Now, in case any of you missed it, there are five votes against the two rationales that were announced for upholding the denial of the applicability of the right to confront by four of the five justices who upheld the trial and appellate courts. And then there's an opinion by one guy who doesn't agree with anybody, but determines the outcome of the case. Sometimes I wonder whether those folks in the big stone building in D.C. realize that the rest of us have to try to actually figure out how to apply the obtuse obfuscations they send down from the mount.


In Williams, there was an unidentified rapist.  A DNA sample taken from the victim was sent to a out of state lab.  When the result came back it was compared to DNA samples that the state had previously taken from convicts and analyzed at the state lab.  There was a match.  Illinois provided both the person who performed the test on the sample taken from Williams after the prior conviction and the person who compared the results, determining that they matched.  However, it did not call anyone from the out of state lab to testify about that sample.  Williams cried foul, claiming a violation of his right to confront the person who did the analysis in the out of state lab.


There's a very strong argument that Williams should be entitled to examine the analyst from the out of state lab under current constitutional jurisprudence.  The DNA analysis from the out of state lab is vital to the case and Williams would not have even been a suspect without it.  However, the above opinion holds otherwise.  Look, I'm a prosecutor and predisposed to the introduction of these forms, but those rationales are poor.  Mayhap, Oh Great Supreme Court Justices above us all, you might try a justification such as this:  (1) The analysis of the DNA is done by a machine.  (2) A machine cannot be examined or cross examined.  (3) The work done by a machine is not testimonial.  (4)  The technicians that put the item into the machine, take the item back from the machine, and get a copy of the result from the machine are merely extensions of the machine's workings. (5) The comparison of the two results from machines by a human being is testimonial and that person must testify.    


Yes, there are issues with (4), but there has to be a point where you draw a line.  There's always one more person down stream whom the prosecutor has not brought to court. If the prosecutor provides the analyst and the technician then the defendant can complain that the person who maintains the machine has not been called.  If the prosecution provides the analyst, technician, and maintenance man, then the defendant can complain that the person who designed the machine has not been called. et cetera. et cetera. et cetera.  A line has to be drawn somewhere and the technician / analyst line seems to be a logical place.  This, of course, does not address chain of custody issues - only the right to confront.


Instead we get the "because it passes Federal Rule of Evidence 703 it is constitutional, especially in front of a judge" argument.  That argument is pretty threadbare and Justice Thomas deals with it without breaking a sweat.  Virginia Practitioner's Note: Be advised that our Rule of Evidence 703(b) does not track with the federal rule; we stuck with the common law:

(b) Criminal cases. In criminal cases, the opinion of an expert is generally admissible if it is based upon facts personally known or observed by the expert, or based upon facts in evidence.

Therefore, in Virginia the expert cannot rely on inadmissible evidence and therefore could not talk about it in his explanation of the basis of his opinion.  Therefore, this should never be an available argument in Virginia.


As for the primary purpose test, (3)(a) above does make an arguable point as to the primary purpose of the of the analysis.  However, it's a microscopically thin hair they're splitting there.  Yes, the primary purpose was to catch the rapist, but the primary purpose of catching him is to prosecute him (this does not appear to be a serial rapist case with a desperate need to find the offender before he strikes again).  Catching the offender and prosecuting him are events of a continuing purpose and intimately intertwined.  It makes no sense to separate the two.


The rest of the Four's argument is specious.  Despite what (3)(b) states, if something exculpates everyone else it is clearly inculpatory evidence against anyone it does not exculpate.  The fact that a requirement will lead to increased cost, per (3)(c), does not mean that the constitutional requirement can be bypassed.  I'm fairly certain that if we took thieves out the back door of the courthouse and executed them the moment they were convicted it would be much cheaper than allowing them appeals and maintaining prisons to house them; nevertheless, we obey the constitutional mandates.  Arguing that the defendant's right to confront is okay as long as he could subpoena a person to court, as in (3)(d), would relieve the prosecution of any duty to provide anyone; after all, if the defense did not want the prosecution to be able to rely on the police report as proof of an illegal act, it could have subpoenaed the officer.


As for Justice Thomas' rationale for upholding the introduction of the DNA test results, I must admit that it has a superficial attraction.  At first it appears to be a more bright line rule.  However, after examining it a little more closely, I think there would be some problems.  The obvious one is the one Justice Kagan raises in her dissent: if statements can get in just because they are not formalized then law enforcement agencies, legislatures, and prosecutors are going to go out of their way to stop getting things formalized.  Whether a certificate of analysis from the state lab has an attestation on it is a formality only; presumptively, the lab will do the same work either way and it will carry much the same weight with the finder of facts.  Does anyone truly believe the jury goes back to deliberate and spends time examining the notarized seal on the report?


I'm also concerned as to what "statements from formalized dialogue" means exactly.  As "custodial interrogation" is pointed out, we know it is covered, but what about a 9-1-1 call?  Or even an interview of a witness?  Are they formalized because they are noted and reported?  Or are they lacking formality because they are not done in a custodial environment or in a particular fashion set forth by an agency policy?  That's a nest of vipers I don't particularly want to get thrown into.  In the end, Justice Thomas' solution seems too readily circumscribed and thus unworkable.


Here's the rule as I see it for those of us practicing in Virginia, applying the rule of the Four and the rule of Thomas and considering Virginia's Rule 703(b):

Rule of the case:  A non-formalized statement which has as its primary purpose the catching of an offender who has not been specifically identified when the testing is done can be admitted at trial.

If the statement makes it through all those hoops it has the support of five justices.  Mind you, this is tenuous as all get out.  A portion of the rule I just laid out is opposed by five justices.  The other portion seems to be opposed by eight.  Nevertheless, if you tack windward you have the number of votes needed to support the rule.


And, good luck explaining all this to your trial judge during a two minute bench conference in the middle of your next jury trial.  You can do it.  I have faith in you.