Let's Grade the New Washington and Lee Law Program

A while back Washington and Lee Law decided it was going to start training law students in the actual practice of law in its third year of law school.

Admittedly, I have not looked at the W&L Law 3L program indepth prior to this date. I was just happy that they are trying to actually give the students some legal skills, but after viewing the almost gleeful reaction to W&L's placement rates, I thought I might look into this for myself.

My conclusion? The third year program is flawed. Still, it has the kernel of a really great program within it. It just needs to trim a lot of dead wood classes and concentrate on real world practice.

Here's how W&L Law describes its 3L year:

W&L Law's rigorous third year expands upon the lessons and law of the first- and second-year curriculum, moving students out of the classroom and into the real world of legal practice.

The third year consists of four components that blend the practical and the intellectual into a diverse range of simulated and real practice-oriented experiences:

• A two week long skills immersion at the beginning of each semester, one focusing on litigation and conflict resolution, the other on transactional practice
• Four elective courses, one real-client experience (either a clinic, an externship or a Transnational Human Rights program) and three additional electives taught in a problems-based, practicum style
• At least forty hours of law-related service
• Participation in a semester-long professionalism program.

I thought I'd look through this and grade everything on a scale of 0 to 5. 0 = absolutely useless; 2 = makes a student have about the same skills and hiring attraction as any other law student; 5 = makes law firm want to hire you more than the top Yale grad.

(1) Skills Immersion (2 weeks each) - 

Fall Semester: Interviewing, Partner Consultations, Client Counseling, Drafting, Client Communications, Discovery and Fact Investigation, Motions Practice, Persuasive Writing, and Advocacy and Trial Skills.

Rate: 2 (Good stuff, but too short a time period to be useful)

Spring Semester: Negotiation Training (adversarial v. interest-based negotiation); Mediation Training. 

Rate: 3 (two weeks is exactly the amount of time that a law school should spend on negotiation-mediation-alternative dispute resolution for the entire three years; hopefully the academic obsession with this useless sidetrack is dying down)

(2) One "real client experience"

Externship

COMMUNITY LAW CENTER AT THE OLIVER HILL HOUSE (Legal Aid / Civil Rights)

Rate: 1 (good experience if you plan to work in legal aid or civil rights - not much use otherwise & may tend to raise detrimental concerns with actual hiring law firms)

COMMONWEALTH’S ATTORNEY (Prosecutor's Office)

Rate: 2 (courtroom experience)

UNITED STATES ATTORNEY (Prosecutor's Office)

Rate: 3 (just the fact that it's the US Attorney looks good on the resume & exposure to the system)

STATE JUDICIAL EXTERNSHIPS (Research Assistant)

Rate: 2.5 (exposure to the system, a judge's thought process, and legal research)

 FEDERAL JUDICIAL EXTERNSHIPS (Research Assistant) 

Rate: 3 (exposure to the federal system, a federal judge's thought process, and legal research)

PRIVATE PRACTICE WITH GENTRY LOCKE RAKES AND MOORE (Assigned to a section: Corporate Litigation, Plaintiff Litigation, Insurance, Corporate Transactions, Employment, Land use/Zoning/Local Government)

Rate: 3.5 (wow, a real law firm)
Clinics

BLACK LUNG BENEFITS PROGRAM

Rate: 2.5 (administrative law practice; difficult)

COMMUNITY LEGAL PRACTICE CENTER (Legal Aid)

Rate: 1 (good experience if you plan to work in legal aid or civil rights - not much use otherwise & may tend to raise detrimental concerns with actual hiring law firms)

CRIMINAL JUSTICE CLINIC (Misdemeanor Public Defender)

Rate: 2 (courtroom experience)

TAX CLINIC (Legal Aid)

Rate: 1 (good experience if you plan to work in legal aid or civil rights - not much use otherwise & may tend to raise detrimental concerns with actual hiring law firms)

VIRGINIA CAPITAL CASE CLEARINGHOUSE (Assist the Defense of Capital Cases)

Rate: 3.5 (hard work and research in a complex area of law)

Transnational Human Rights

TRANSNATIONAL TRIBUNALS

Rate: 0.000005 (Really? Eurocourts?)

TRANSNATIONAL ACCESS TO JUSTICE

Rate: 0.000005 (Euroleftism?)

TRANSNATIONAL EUROPEAN COURT OF HUMAN RIGHTS - SERBIA

Rate: 0.000002 (Eurocourts as applied to one specific situation)

These would probably be very interesting courses and of no actual use whatsoever when the student tries to get a position at a US law firm.

(3) Electives taught in a problems-based, practicum style

Rate: 2 (a class taught at a law school is a class taught at a law school)

(4) 40 hours law related service -

Approved ways of getting hours: Legal Aid, Public Defender, Justice Center, Project Horizon, CASA, Virginia Poverty Law Center, ACS, VITA, Translator for any of the clinical programs, Innocence Project, Moot Court Board, Kirgis Fellows, Teaching Assistant for Undergraduate Mock Trial Team, Honor Advocates, Student Judicial Council (hearing work), Executive Committee (hearing work), and Law Journals.

Specifically Excepted: Work for a prosecutor or judge.

Rate: 1 - (A) Shame on Washington and Lee for the pettiness of refusing to acknowledge work for a prosecutor or judge as law related service. There's no way that is anything other than ideological and shows a bias against public service if it is not of a certain flavor. (B) This form of imposed community service seems to be an ongoing fad at law schools. At best it is a harmless imposition of the professors' and administrations' biases upon the student. At worst it forces the student to pay money to a school so that he can be forced to work in an area which may hurt his chances with certain firms.

(5) Semester Long Professionalism Program

The Professionalism Course will be taught by Prof. Moliterno.  The course will include units dealing with ethics and professional responsibility; the economics and financing of the legal system; examination of the "business aspects" of the profession; marketing and advertising of legal services; interactions with clients; a portraiture of the profession, including exploration of the different career paths and opportunities available to lawyers; time management and organizational skills; advanced instruction in litigation skills and the ethical issued posed by litigation decisions; advanced instruction in office practice and transactional skills and the ethical issues that arise in transactional practice; examination of the impact of globalization on law practice; examination of the impact of new technologies on law practice; discussion of work-life balance, stress, and lifestyle issues; exploration of the role of the lawyer as citizen participating in civic and community and corporate and leadership; and the future challenges, stresses, and "great issues" facing the profession.

Rate: 2  (I cannot tell exactly what this is. A year long ethics course would have gotten a 0.50. A year of being taught how law firms actually operate, concentrating on how the business aspect - tracking and paying taxes, hiring, file organization, business costs, etc. - is actually run in solo, small, and BigLaw firms would be a 3. The amorphous description above gets a 2.)

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Overall Rating: 2

Let's be fair - W&L is not in competition with Harvard, Yale, Chicago, and Stanford. That's not to say that W&L is not an excellent school; it just means that if someone graduates from the aforementioned schools he will get hired just because of the school he went to without further examination. W&L Law is a school that gets you looked at above many graduates of other law schools, but it does leave you in a position that you have to compete and something has to be done to make you stand out.  W&L is to be lauded for trying to set up a program that gives its students an edge.

However, this program is flawed. You can get excellent resume boosters and increase your ability to get hired through this program, but you are going to have to walk a minefield and avoid what appears to be the majority of the program.

The problem is that the program above seems geared to steer students into a certain world view and force the majority of them to prep for legal aid jobs. Legal aid is wonderful work for those who actually want to do it. For those who actually want to do it. The majority of students want and, because of massive academic loans, need jobs in the private sector which pay well. With this in mind, the emphasis on legal aid types of work is greatly over emphasized.

To be certain, legal aid programs should be offered and if only one of the programs offered above was available (particularly the Oliver Hill House) I would have probably rated it a 3. However, three different legal aid programs (four if you count Black Lung) are too many so they split the three points. Writing simple wills is something any law school graduate should be able to do with ease. Tax returns for people without serious amounts of money or tax dodging issues is something that H&R Block teaches its temporary hires in less than a week. Neither is particularly impressive. If a student is looking for this kind of work upon graduation it should be available, but it really should be limited to those interested. It appears, from the dominance in the curriculum that students may be forced into this area if they actually want an externship.

And what the heck is that transnational stuff? Needs to be dropped. Desperately needs to be dropped.

The school really needs more programs like the one which puts students in an actual firm doing research and learning how a firm actually operates. I realize that this is a little difficult for W&L because Lexington, Virginia is a somewhat remote. However, the school needs to reach out to as many firms as it can and basically offer its students as apprentices. A resume stating that John Smith worked at an actual firm which does insurance defense or contracts, or PI, or any of a number of type of practice means he has actually been exposed to real legal work of a kind similar to what the hiring firm will have him doing. Now imagine that same hiring firm which does insurance defense or writes contracts for IBM, ExxonMobil, Ford, Microsoft, etc. getting a resume which says the student took a class on transnational justice or did legal aid. Think that's going to be a plus?

The 5 Most Interesting New Laws in Virginia

It's that time of year again and the General Assembly's new laws are about to go into effect and here's the top five things that caught my attention.

1) The anti-cohabitation statute has been repealed. So, after 01 July it will be too late to file misdemeanor charges against that @#%$*@ who has moved in with your ex.

2) After a felony DUI conviction (the 3d), all DUI convictions are felonies.

3) "Foot-scooters" was substituted for "scooters" in a whole passel of statutes, but given exactly the same definition so there is no legal difference. They just decided to change the word.

4) Mopeds are now going to need Titles, Registrations, and License plates. However, officers will not be able to enforce against this until next year.

5) Virginia law enforcement is banned from using drones until 2015, "except in amber alerts, senior alerts, blue alerts, for search and rescue operations, or training exercises for these."

This Guy Really, REALLY Doesn't Like Juries

The Difference Between Bias and Terrorism

Bias: Behaviour and/or beliefs based upon experiential modeling (non-statistical). Biases are necessary behavioural shortcuts because individuals cannot evaluate every single thing involved in every particular event and biases allow a person to act in accordance with the superficial information generally available. However, biases are not always rational and can be strongly contrary to societal norms.

Terrorism: An act or acts meant to cause fear of harm in others in order to affect behaviour.

Terrorism is one of those things in life that is so important that its definition has been clearly set out - both in society and in the law. We may argue over whether a particular set of facts fits within the definition, but reasonable minds do not disagree with its definition.

The federal definition of terrorism is spelled out in 18 USC 2331 as activities which (1) involve illegal acts (2) that are dangerous to human life (3) with the apparent intent to (a) (i) intimidate, or (ii) coerce the population, or (b) influence government policy thru (i) intimidation or (ii) coercion, or (c) affect governmental behaviour thru (i) mass destruction, or (ii) assassination, or (iii) kidnapping.

In Virginia 18.2-46.4 defines terrorism as (1) (a) 1st degree murder, or (b) 2d degree murder, or (c) voluntary manslaughter, or (d) violent crimes done by a mob, or (e) abduction, or (f) felony malicious bodily wounding, or (g) malicious bodily injury, or (h) robbery, or (h) carjacking, or (i) felony sexual assault, or (j) arson of a residence, or (k) destruction of a public building while occupied, or (l) being (i) a conspirator, or (ii) an abbettor, or (iii) an accessory before the fact to any of the previously listed crimes (2) which are committed with the intent to (a) intimidate the civilian population at large; or (b) influence the conduct or activities of the government of the United States, a state or locality through intimidation.

Even if you only rely on dictionaries you get similar definitions. Oxford Dictionary Online defines it as "the use of violence in the pursuit of political aims", Cambridge Dictionary Online says it is "violent action for political purposes" and Merriam-Webster states it is "the systematic use of terror especially as a means of coercion." 

Over at Gruntled Center, Professor Weston has confused bias with religious terrorism. In a post obviously meant to convey his disapproval of the biases displayed by a county commissioner in Coffee County, Tennessee, Professor Weston labeled the man a Hate-Filled Religious Terrorist because the man re-posted this photo:

Right. So this was apparently a one-off, thoughtless joke Barry West forwarded from someone else and only meant to share with his "friends" on Facebook.  The man obviously never thought it would go any farther.  However, in the modern era of constant need for "news", this non-story was salacious enough and fit into the Americans in flyover country are ignorant meme of sites like HuffPo, ThinkProgress, and msnNow and therefore it got lots of over-coverage (and I'm sure local media followed their lead). Pretty quickly, they beat the guy into submission.

Anyway I commented as follows:

A hate-filled religious terrorist would be someone who believes he has a positive duty under his religion to go out and do X to others to make them act in a certain manner. This man is reacting to a perceived threat. He may be over-reacting, but there's nothing here to indicate that his reaction is religion based or that he feels that he has a positive duty to seek out and harm or cause fear in those not of his religion in order to force them to behave in a certain manner. 

Professor Weston replied only to my first sentence and stated:

I have to disagree. A terrorist is not trying to make others act in a certain way. A terrorist is trying to induce terror by threatening violence and/or carrying out violence. 

Try as I might, I can't come up with a single act which falls into a "just to create terror" category. Most actors engaging in violence or threats have a blending of reasons for their violence. Revenge, self-aggrandizement, and intimidating other potential victims seem to be the top three reasons.  Attacks such as the Oklahoma City bombing - which was undeniably terroristic - are usually a mixture of revenge (for Waco and Ruby Ridge), attempted inspiration (trying to inspire like minded people the rise against the federal government), self aggrandizement (we remember McVeigh and Nichols), and an attempt to affect the behaviour of others thru terror (to cow the government so that it would not use militaristic force against people).

It also seems an unsupported assumption to state that these biases rise out of a religion (presumptively Christian) rather than fear and anger brought about by a long list of terroristic attacks on American targets by people associating themselves with Islam - the bombing of the Embassy in Lebanon, the first World Trade Center bombing, the Khobar Towers bombing, the killing of U.S. airmen in Germany, the USS Cole attack, 9/11, the Benghazi attacks, and the Boston Marathon - as well as a long list of similar attacks in Britain, Russia, the Sudan, Egypt, Thailand, the Philippines, India, Pakistan, and Indonesia.

To be fair, while not terrorism itself, the bias expressed in the joke is such that it may be indicative of a society that fosters terroristic activity. On the other hand, the glib reposting of a Facebook joke is not a good way to measure the depth of a bias. It required almost no time, thought, or effort (a couple clicks) and seems more likely an indication of a bias that is widely shared but shallow.  How many thousands of people, through the simplicity of Facebook, shared this particular jape? Unknown. Probably thousands. Looking through my Facebook feed this morning there are all sorts of similar posts relying on shallow biases. Jokes rely on biases in order to give the person receiving the joke a frame of reference. My feed has jokes based upon biases about men, women, children, parents, and Yankees. I do not expect any of those are indications of strong bias but they are indicative of widespread bias or they would not be so popularly reposted.

Actually, the question that keeps popping into my head is, what is the agenda of the person who initially publicized this story?  Because, that person put a lot more effort into this than the politician who clicked twice to repost.

Halfway Thru the CLE Season

Last Friday was the second part leg of this year's three part CLE teaching schedule. The first was a two hour presentation that I do every year for the 30th Circuit's Bench-Bar CLE in March (when you're in far Southwest Virginia it's not practical to go where most Virginia CLE's are held, so we do our own). For that one I provide the local Bar with a written summary of all of Virginia's published appellate court crimlaw decisions (as well as pertinent 4th Circuit and US Supreme Court cases). Then I do a two hour presentation of the cases which are the most interesting or that most affect crimlaw practice. Usually, this is broken down into Constitutional Law, Criminal Procedure, Evidence, Substantive Law, Probation, Appeals, and Habeas sections (dropped Habeas this year & may also drop Appeals next - just feel like the time could be better spent on the other topics). Preparation is time intensive, but it's a fun lecture to give. It's particularly good that I know almost all the people in the room and don't have to worry about any appellate court judges being in the audience so things can be a little more candid then you typically see in a bigger CLE. There's always at least one case that makes it into the presentation as the most illogical decision of the year, just so that I can gently poke fun at it while the attorneys in the audience groan and roll their eyes. Although, I must admit that this year the fun case wasn't an illogical case. Instead, it was the Great Motorcycle Helmet Slapdown in which the Virginia Court of Appeals issued the most defendant friendly opinion I've ever seen out of that court (I won't say the only one, no matter how tempting it is) and struck down a whole pack of convictions for having unapproved motorcycle helmets.

Last Friday's CLE was the Solo & Small Firm Regional Bench-Bar Conference for the 28th, 29th, & 30th Circuits. I presented a quick half hour on Virginia case law with some new legislation thrown in. Then an AUSA did some of the same for federal matters and then Judges Dotson & Moore as well as Dean McGough from the Appalachian School of Law made some comments and the audience posed questions to the panel. Of course, this time I only knew about 10% of the people in the room and I'm pretty dang sure there were appellate court judges in there. So, my comments were a little more restrained, although I must admit that I was sorely tempted to say something snarky about the case in which in which the Court of appeals rejected an appeal because the defense attorney objected that a juror would be biased and the appellate court said the proper objection should have been that the juror would appear to be biased.

Next comes the CLE in which I travel to each of the local counties and tell the attorneys what new criminal laws passed by the General Assembly of Virginia. I comb through the new laws and put together a summary of those which will affect criminal law and procedure. Then I present it (usually over lunch). This started out as something I was doing for our county's deputies and police officers. It's always interesting to hear the questions the officers have as compared to the questions the lawyers have. The officers tend to ask questions like, "How the heck are we supposed to do that?" and I have to admit that more than once I've had to look them square in the face and shrug my shoulders. Of course, there is usually a new statute or two which leaves you shaking your head. So far, the one I've had the most fun with was the nobody can drink your beer outside your house statute. The lawyers thought it was funny, but the officers got to the meat of the matter immediately: "So, what you're telling me is that every backyard cookout has to to be BYOB? You hear that Bob? You don't get to mooch beer off me anymore. It's a law."

CrimLaw CLE

Today, I am helping to teach a CLE session on Criminal Law in Virginia. If you are interested, the power point presentation I plan on using is HERE.

Full breakdowns of the cases for the last year-plus are located HERE.

Some of the cases I will be discussing today are cases which I have previously discussed here on the blawg.

Missouri v. McNeely

Florida v. Jardines

U.S. v Jones

Baker v. Commonwealth

Missouri v. McNeely, DUI's, & Implied Consent

Holding of the case: The metabolizing of alcohol in the blood is not an exigent circumstance justifying the drawing of blood without a warrant.

Implications of the case:  The drawing of blood is a 4th Amendment matter and the 4th Amendment is not nullified by implied consent (raises the question of constitutionality of charging refusal).

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Yesterday there was a bit of a kerfuffle when the US Supreme Court put out Missouri v. McNeely.  Mostly, this was because of the way Missouri law enforcement (and maybe their statutes) dealt with refusal to to submit to a breathalizer or blood test when an officer has probable cause to believe a person has driven under the influence of intoxicants.  The Missouri solution?  Take the person to the hospital and take a blood sample against the person's will.

Missouri argued that this had to be done because the human body filters out alcohol as time progresses and this was an exigent circumstance.  The trial court, the Missouri Supreme Court, and the U.S. Supreme Court all rejected this argument. So, Missouri gets credit for persistence, but it loses a whole lot more because it does not understand the definition of "exigent."  All the courts listed above ruled that a human body metabolizing alcohol, absent something more, is not exigent.  It's just a normal bodily function. The U.S. Supreme Court went on to say that in the modern era we have these things called "phones" which can be used to call whomever an officer needs to in order to get a warrant in a timely manner.

All this rises out of "implied consent."  Every State has some form of this legal theory and at its core it makes sense. If you decide to drive the roads of Virginia the implication is that you will follow the laws in doing so.  You'll drive the posted speed; you will stop at stop signs; you will not drive intoxicated. It's basically an agreement to follow a social compact for the road. However, implied consent then gets pushed beyond the area of the driving social compact into the realm of the foundational rights we have baked into our system through the Constitution. Implied consent is held (universally as far as I can tell) to require a DUI suspect to cooperate in the gathering of evidence against herself by agreeing to breath or blood test.  As such, it comes into conflict with the greater social compact of the US Constitution and its guaranties against searches without a warrant.

Virginia's way of handling this was to pass 18.2-268.3, a "refusal" statute.  The pertinent part of this is subsection D:

D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2. 

 If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2. 

Thus, in Virginia (and I suspect most States) the officer does not take a refuser to a hospital and force him to submit to an unconstitutional blood draw.  In the vast majority of cases he merely files another complaint to the magistrate and gets a refusal warrant issued against the suspect.  If the officer feels the circumstances are such that there is a reason he needs a blood draw without the suspect's acquiescence, the officer can also ask for a search warrant from the magistrate.  Of course, if there are actual exigent circumstances (best be able to justify it in court) an officer could arrange for a blood draw without a warrant.

The Affect Of McNeely on Virginia Law:

At least initially, not much.  Because Virginia does not authorize taking someone's blood without a search warrant or actual exigent circumstances, things will continue as they have.

In the longer term, the refusal statute may be in trouble.  The Virginia Appellate courts have consistently held that the implied consent waives the 4th Amendment:

We also find no Fourth Amendment violation in punishing a DUI suspect for refusing to provide a breath sample under Code § 18.2-268.3. As a general rule, a search authorized by consent is wholly valid. The general rule applies here because Rowley, like all drivers, consented to submit breath samples by exercising the legal privilege of driving on the Commonwealth's roads. See Code § 18.2-268.2(A). This consent is not "qualified" or "conditional. To allow it to be unilaterally withdrawn would virtually nullify the Implied Consent Law.

Rowley's Fourth Amendment challenge to Code § 18.2-268.3 thus fails for the very reason Code § 18.2-268.2(A) succeeds. The act of driving constitutes an irrevocable, albeit implied, consent to the officer's demand for a breath sample. See Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir.1986) (holding that there "is no Fourth Amendment right to refuse a breathalyzer examination"). The trial court, therefore, correctly rejected Rowley's Fourth Amendment claim.

Rowley v. Commonwealth, 48 Va. App. 181 (2006)(multiple cites and quotation marks removed).

In McNeely it is clear that Missouri has an implied consent law of its own:

Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution.

 And yet, the U.S. Supreme Court clearly recognizes a 4th Amendment right against the seizure of the blood when a person refuses to submit. In its discussion of Schmerber v. California, 384 U. S. 757 (1966) the Court plainly states that it held "the warrant requirement applied generally to searches that intrude into the human body."  While not addressed directly, implied consent for taking a blood or breath sample seems to be in an extremely tenuous position post McNeely.

The Constitution: True American Common Criminal Law

So far, as we have discussed, in criminal law the American common law project has fallen into discord. There are three major sets of laws in the United States: the model penal code common law, the traditional American common law, and federal criminal laws. Even among these major streams of there are further variances as courts not subject to superior review decide differently on the same issue or legislatures adopt different laws in relation to the same issue.  In other words, in the United States, the common law project has failed.

Except in one area.

The one true area of American common law is constitutional interpretation.  In fact, ConLaw is common law triumphant.  Of course, whenever you say this people go apoplectic.  They'll all splutter something about Constitutional Law being unique and different.  It's not a rational reaction; it's simply the response of people who have been taught to think of the Constitution as incomparable holy writ rather than an act.  Of course, they are wrong.

As previously discussed, the British common law had no problem incorporating acts into common law.  One sovereign meant that as soon as an act was made law it, by definition, became the common law.  In the United States many do not understand this as part of the common law because in our separate sovereigns system there were 51 sovereign legislatures passing laws which, by definition, could not become the common law of the land.  Thus, American jurists are programmed to overlook the one sovereign act which is common to the entire nation: the United States Constitution.

The Constitution by its very definition is common to us all.  As well, case law under it develops exactly as common law is supposed to. Issues are addressed by lower courts either in the federal circuits or the State appellate courts and if there is a major disagreement as to how a particular constitutional provision is to be applied there is a single authority, the United States Supreme Court, which can provide a final answer.  There is also a process wherein the body of constitutional law can be changed legislatively by the sovereign, overruling even the Supreme Court, although recourse to this is exceedingly rare because it is extremely difficult (Amendment).  In any event, the presence of a single authority ruling on a singular set of laws applicable to the entire nation makes constitutional common law triumphant.

However, as in all common law, the fact that there is a final authority does not make decisions made by that authority well reasoned or even correct.  It just makes them final.  A perfect example of this in recent times has been the US Supreme Court's jurisprudence as to dog sniffs.  The Caballes decision declares that when a dog sniffs at an object and reveals something inside that object no search has occurred.  It is an incredibly flawed decision. Nevertheless, by virtue of being decided by the final authority, it is the common law of the entire land.

It is also clear that constitutional common law decisions do not have to reflect a majority position.  Constitutional common law decisions have overridden the laws of a significant number of States or a majority.  Most recently, this has been seen in the US Supreme Court's hostility to punishment for minors expressed in  its rejection of the death penalty for those under 18 years of age (overriding the laws of 25 States) and its rejection of mandatory life sentences for those under 18 who commit certain murders (overriding 28 States and Congress).

Constitutional common law merely provides finality; often it is a choice between two possibilities neither of which is necessarily correct.  For instance, in a trial post Miranda the prosecution is not allowed to mention the fact that a defendant refused to talk to the officer about the case.  As more recent Supreme Court opinions have reminded us, the purpose of the 5th Amendment is to prevent coerced confessions.  Theoretically, it keeps officers from beating confessions out of people (whether they are guilty or not) by making any coerced confession inadmissible.  All-in-all, a good idea.  However, there's nothing particular to stopping forced confessions that would require that a defendant's voluntary silence should not be commented on in trial.  If a defense is offered first at trial and the defendant would have known about it when the officers tried to question him, but he invoked his right to remain silent and the officer stopped questioning him, how would allowing the prosecution to comment on the refusal tend to encourage officers to coerce a confession out of defendants? 

All of the above are exemplars of American common laws brought about under the auspices of the United States Constitution (4th, 5th & 8th Amendments).  Thus, while the common law seem irretrievably broken in many micro-aspects because of the separate sovereigns, in a macro-aspect it provides an overarching common law framework which has become more and more restrictive as time has passed.

The Model Penal Code Experiment: Failure to Create a New Common Law

Part 1          Part 2

Okay, when we last left American common law, it had fallen apart because there were fifty-one supreme courts and fifty-one legislatures messing with it. Then, the federal courts washed their hands of participation in the common law project.

Into this void stepped a number of non-governmental actors including most prominently the American Law Institute. The ALI project which is most pertinent to this blawg is the model penal code. In this, the ALI promulgated an entirely new criminal code meant to replace the varied criminal codes and case law developments around the nation. This attempt to create a new American common law has not been nearly as successful as other ALI projects. The MPC was promulgated in 1962 and through the 60’s and 70’s a number of States adopted large parts of it. However, no State’s criminal code adopts the MPC in its entirety and about a third of the States and the federal government rejected it entirely. This would not have been so much of a problem had the ALI’s Model Penal Code been a restatement of American common law. It was not. The ALI decided it could do better and rewrote large sections of law in a direction different from existing American common law. In so doing, and thereafter failing to gain adoption across the board, the MPC added to the cacophony rather than dampening it. Now, there are three conflicting streams in American criminal law. A third of the States still have criminal codes with roots in old American common law. Two thirds of the States have criminal codes which are (at least in significant part) tied to the MPC. The federal government is off wandering in its own briar patch of unique criminal law.

Even worse, the MPC failed to deal with certain matters. Most significant among these was probably illicit drugs. Consequently, every State, whether an MPC common law State or a traditional common law State has gone off and developed its own law dealing with their illegalization. The only “common” part for most of these laws actually comes from federal example in the scheduling of drugs. Other than that, they vary widely from State to State.

As well, some parts of the MPC are now out of date. The example I have seen given most often in this regard is the marital rape exception. In times gone by, the law considered sex a wifely duty and therefore, a man could not commit rape by taking what was his due. The MPC adopted this marital rape exception. Of course, in modern times this has been roundly condemned and rejected as States have written it out of their laws. It remains in the MPC.

To be fair, the ALI is trying to update the portions of the MPC having to do with Sentencing and Sexual Assault. However, the politicization of the ALI (which became extremely clear when it removed capital punishment from its sentencing) put it out of touch with the great majority of States and citizens. This almost surely dooms the Sentencing project. So far, to the best of my knowledge, no controversy has surfaced concerning the Sexual Assault project. Nevertheless, it does not seem that the ALI's penal code is in favor anymore. It has been over thirty years since the last State which was going to adopted a variation of the MPC and it seems quite likely that the ALI's attempts to change its penal code and further influence the nation's criminal law is a form of whistling in the dark.

So, in the end the ALI's MPC has not streamlined American criminal law (although it probably simplified criminal law in particular States). Instead, when it failed in a third of all States to supplant traditional American common law with its new and improved common law it created a great split. On one side are a sizable minority of States which have stayed “common law” and rely on laws and practices as they have developed in court and have roots as far back as the Magna Carta. On the other side is a majority of States who to some extent have replaced that with a penal code created in the 1950's – 60's. By their very natures, the two systems do not interact well with each other and thus, inadvertently, the MPC did much damage to the idea that all States could move in the same direction with their criminal laws. Additionally, the penal codes based upon the MPC have been fraying for the very same reason that the traditional American common law did. Each State which adopted parts of the MPC has now had somewhere between thirty to fifty years for legislatures to fiddle with the statutes and courts to develop divergent interpretations. Without a centralized authority capable of providing a binding final answer, the MPC was just as doomed as traditional American common law.

An Open Letter to Harvard & Yale

Good Day,

Thank you for your interest, but I am satisfied by my current employment and not interested in leaving Virginia to come to either of your schools. While I appreciate the offers of fully tenured employment and the salary proposals are impressive, I must ask you to stop this unseemly bidding war. Currently, the salaries you are both offering are high enough that they are basically indistinguishable. Were I interested, I would make the choice on merit - not the additional twenty thousand dollars blocks of money with which each of you keeps topping the other. You are rapidly approaching the point at which you will begin embarrassing yourselves and I must ask you to desist.

I understand that you both are desperate to find someone to teach criminal law and related classes who has actually spent time practicing law and has been the lead attorney on a few dozen juries. I also agree that the fact I have spent time as both a defense attorney and prosecutor gives me a good perspective from the trenches. In so far as we agree on these points, perhaps I would have been a good fit at one of your institutions.

However, the advanced classes you were asking me to teach were not things which I feel relevant to the practice of law. Yes, I have studied Arabic and Hebrew. Nevertheless, I fail to see how “Shariah as a Blueprint for Reforming Modern American Criminal Law” and “The Tanakh and Talmud as Underpinnings of the Model Penal Code” will be helpful to students who actually plan to practice law. Certainly, they would be fun to teach, but I do not believe my personal foibles should be allowed to sidetrack the education of those who will most likely be leading the legal profession into the future.

As well, the dog issue remains unresolved. As you know, I have a german shepherd and labrador retriever and I am rather attached to them. Sadly, I not convinced that either the environs of New Haven or Boston are favorable for dogs. The last time I was in New Haven I walked through town and saw no dog larger than an ankle nipper and I have never seen any dogs in Boston. Of course, as any dog lover knows, this is a deal breaker. Abandoning Laddie and Holly would be an unconscionable act and I cannot bring myself to commit that wrong.

Again, I am sincerely honored and humbled by your generous offers. Walking in the door with a fully tenured position and a yearly salary over five times what I now earn is very tempting. However, I must regretfully decline your offers.

Respectfully,

Ken Lammers Jr., Esq.

Good Easter

2. Erie: Federal Withdrawal from American Common Law

Part 1

Eventually, the flaws in the American common law system began to cause problems. The most well known example of this was probably the incongruities between State and federal interpretations of law in matters which came into federal courts requiring an interpretation of a State’s laws. A State supreme court and federal courts would look at stare decisis in that particular State and develop conflicting interpretations of that State’s precedents. In a functional common law system the court later in time should have followed the decision of the earlier court regardless of the fact that they were in different parts of the American judicial system. As well, a functional common law system would have a higher court capable of resolving any differences that arose between a State and federal court regarding that particular State’s law. Instead, the conflicting interpretations continued and led to manipulation of the judicial system. If federal precedent of Georgia’s law was favorable and the Georgia Supreme Court’s precedent was not, the party who wanted federal jurisdiction would do everything it could to get into federal court and the party favored by Georgian precedent would fight just as hard to stay in Georgian courts.

Eventually, this came to be such an issue that the United States Supreme Court, sua sponte, decided that federal courts must follow a State courts’ precedents when deciding an issue dependant upon State law. This is the rather famous Erie Railroad Co. v. Tompkins case which is often described as the end of federal common law.

More accurately, the Erie decision was a withdrawal from the common law project. The federal courts would still be bound by cases from State courts and those State courts were still part of the common law project, but federal decisions about State law would only be binding, even in federal court, in so far as that State’s appellate courts had not spoken on the matter. If the 6th Federal Circuit had ruled that the common law crime of snipe hunting was illegal after dark and the Kentucky Court of Appeals chose to ignore the federal case and ruled that snipe hunting was actually only illegal in the afternoon, the decision from the Kentucky Court of Appeals overruled the federal court, even in federal court.

The case was a triumph of American federalism and a body blow to American common law. The one legal entity capable of making one American common law had abandoned the project. Imagine a different outcome wherein the Federal Supreme Court had embraced the common law and ruled that the federal courts had the final say under a due process theory (i.e. It is fundamentally unfair for a citizen to be subject to the whims and vagaries of a multiplicity of interpretations for which he cannot possibly have the notice of all as he passes from state to state. Therefore, American common law requires that federal interpretations preempt any and all state decisions to the contrary). Such a decision would have radically altered American jurisprudence and given us much more of a single law system. However, post-Erie, the States were left to wander in the common law wilderness without anyone to decide who was correct when their precedents contradicted each other.

Subsequently, States, left with no way to resolve their differences under the American common law as it stood, turned to extra-governmental entities for a solution.

The Money Quote From Jardines

The US Supreme Court, in a decision written by Justice Scalia, ruled today that if police enter a citizen's curtilage in order to have a dog sniff for potential drugs in the house the police have violated the 4th Amendment because they are outside of the scope of the implied invitation to walk to the door and knock in order to contact the citizen living there.

The best quote of the case:

"To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police."

American Common Law: What It Is & Why It Developed Problems

The common law is not Blackstone.

Yes, I hear the gasps and curses. And there’s even a few guys sitting in the back of the internet who muttered “Heresy!” But, wait, before y’all start piling up a cord of wood so you can burn me at the stake, let me explain.

People tend to have a poor understanding of what the common law is and what the common law was. Ask a new graduate of law school what the common law is and you will most likely get one of two answers: stare decisis or Blackstone. To be fair, this is not the young lawyer’s fault. Quite often, our law schools do a horrendous job of explaining what American common law is / was. This is because in large portions of our country the common law has been supplanted by a quasi-civil law system and I don’t think even many people who have been practicing, teaching or judging take the time to understand how the common law works - much less to explain it in a coherent way to young or prospective lawyers.

Neither Blackstone nor stare decisis encompass the entirety of American common law. Blackstone is a snapshot of British common law at a period close enough to our separation from Britain so that it provides a starting point for American common law. However, it is always possible to find other sources for common law as it existed in 1776 as well. There’s nothing particularly sacred about Blackstone; it’s just an easy place to look for a synopsis. American common law proceeds from Blackstone and other English sources. They are far from the final word.

Starting with the English common law, as limited by the American constitution, the American common law moved forward. It provided both substantive and procedural law and it grew and changed. The idea behind the common law was that the entire nation, from Alaska to Arizona to Virginia, was working together to develop one law that would govern us all. Judges in every State, and the federal government, were working together to develop one law. Almost perversely, the lack of computer legal resources and large libraries probably helped this process. A judge riding a circuit could only carry so many books with him and the local courthouse might not have much of anything either. Even a well stocked law library would probably have a book on evidence, the State’s statute book (one of those old monstrous tomes that were a foot and a half thick), and something along the lines of Corpus Juris or Amjur. If you were really lucky there might be a copy of United States Supreme Court Reports Lawyers' Edition which had both cases and treatises explaining the state of the law across the nation. There might also be a set of the State's published cases, but remember back in the day, before computer searches, this set of published cases was not nearly so useful. How would the judge in 1892 know that there was a case in 1795 that was directly on point? The answer is that he would not.

At this point we come to the point where we must start to discuss stare decisis. Back in the day, stare decisis was not as solidly established as it is now. Certainly, a State’s precedent was to be followed by a State court. However, unless it was in somebody’s book of important and relevant cases (Amjur, Corpus Juris, or the State equivalent), the only way someone would know it existed - no matter how much it was directly on point - was if he tripped over it by some happy accident. Additionally, cases from other States were not viewed as merely advisory. A decision from Alabama was just as much a part of the common law as any other decision and therefore when it quoted in Virginia it carried weight. Not so much as a Virginia opinion, but not so little that it could be easily ignored either. An opinion from another State carried its own stare decisis as part of the common law.

So, judges and lawyers without access to computers and limited access to expensive and bulky books would look first to their State’s statutes and if they were not clear or they did not cover the question then turn to the common books. A search through AmJur might provide a case specifically from the judge’s State, but more often it would give a general statement of the law with citation to leading cases from around the country. Thus, AmJur, Corpus Juris, and similar books were part of the common law and helped build toward one law across the entire land.

One of the advantages of the common law was that it allowed things to bubble up and become part of national law and procedure. Courts in Virginia might have to deal with issues involving the ancient common law crime of snipe hunting. They could define the element of “at the known proscribed time” as meaning “at night.' Then, North Dakota courts dealing with the same issue could look and see that this issue has been settled in Virginia and follow this precedent as common law.

Of course, this is a rather idealistic view of American common law and if you look closely at any idealistic model you will find flaws and the American common law system is full of flaws. Chief among these is the fact that America took a one sovereign system and split it among fifty-one sovereigns.

In England there was one final legal authority for the common law: the House of Lords. In the United States there were eventually fifty one final legal authorities for the common law - one for each State and the Federal Supreme Court. Thus, stare decisis, which was a boon to English common law, became the bane of American Common law. The House of Lords could decide that an element of illegal snipe hunting is that it must occur at night and this would be the law of the land. In the United States the Supreme Court in Wyoming could decide that snipe hunting was only illegal during daylight hours and the Supreme Court of Florida could decide it was only illegal after midnight and the Supreme Court of Nevada could decide it was only illegal in the afternoon. Because the United States Supreme Court is only authorized to decide issues that rise from the States which are constitutional in nature it could not decide common law matters unless they touched upon constitutional issues, or were raised in cases in federal courts (and even then the decision would have no precedential value in the States), and most common law questions, whether substantive or procedural, do not rise to a constitutional level. Thus, over time as various States’ Supreme Courts put their own spin on different areas of law the law actually became more diverse than common. This became more obvious as publishers undertook to make books which concentrated on a particular State’s precedents rather than on the nation as a whole.

Another failure of the fifty-one sovereigns American common law was fifty one legislatures. In England one sovereign, whether King or Parliament, passed statutes which instantly became part of the common law. In fact, Blackstone is replete with references to statutes and acts and defines the role of statutes in English common law as

STATUTES also are either declaratory of the common law, or remedial of some defects therein. Declaratory where the old custom of the kingdom is almost fallen into disuse, or become disputable ; in which case the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treasons ; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law : therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law : so that this was an enlarging statute . At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. beforementioned : this was therefore a restraining statute.

In the United States this kind of congruent growth of legislation as part of a national common law was difficult, if not impossible. Fifty one legislatures writing black letter law which either enlarged the common law or restricted it in each particular State or the federal system just added to the cacophony. A prime, and continuing, example of this is how the various States and the federal government deal with the problem of illegal drugs. The lack of consistency among the laws is perhaps the most consistent thing about them.

Of course, the traditional way of dealing with the legislatures' attempt to alter the common law has always been consistent. The law is limited to what it states it covers and affects nothing more. Thus, if Virginia were to pass a statute which dealt with advisement in a case of petit larceny that statute would apply only to cases involving petit larceny and nothing further – not even grand larceny. The common law practice of taking cases under advisement, which has developed and become a widespread practice, continues unchanged except that the judge must act in a particular manner in regards to its use with petit larceny. However, while this limited the damage the the legislatures could do to the common law it did not stop the divergences the legislatures kept putting into the laws of a particular State. It is also a doctrine that seems to have sadly fallen out of the knowledge and memory of far too many judges and justices sitting in appellate courts even in States which proclaim they are still common law states.

In the end, the lack of a single sovereign diverted most States and the federal government away from each other on many aspects of the law. Certainly, some basic definitions remained. A larceny remained the taking of the property of another with the intent to permanently deprive the other of that property. However, various details never dovetailed. For instance, the value of an item required to make its theft a felony varies from State to State. In Virginia it's $200, in Tennessee $500, and in Kentucky it's $1,000. This is a significant element and its statutorily defined by each State's legislature and thus it is extremely unlikely that there shall ever be one common resolution for this element across the entire United States.

Next Week . . . And Then Came the Codifications

Habemus Papam Franciscum: They Chose the Holy One

Amidst all sorts of speculation about whether the Church would choose an Italian, so the Pope would understand the workings of the Vatican administration, or a Brazilian, so the Pope would be from the country with the largest Catholic population in the world, the Cardinals went behind closed doors and chose the man most humble: a member of the Society of Jesus who is known for eschewing the finery of his office, championing social justice, and standing strongly behind the Church's moral teachings.

As I sat yesterday watching BBC online prior to the announcement they were rather confidently stating that it must be the Italian since the conclave had come to a conclusion so swiftly. They couched it in probabilities, but when Pope Francis was announced there was definitely a bit of shock and scrambling to figure out what was known about this man whom no one in the media had seriously thought might become Pope.  To top that off, they were confused by the choice of name.  To quote the slightly stunned announcer "A new name. That hasn't happened in a thousand years." Then they assumed it was a name fashioned after Francis of Assisi until someone pointed out that the new Pope was a Jesuit and therefore it might be fashioned after Francis Xavier.  Of course, these have very different implications and the announcers were not prepared to discuss the differences, or the possible synergy of the two, and they lapsed into silence on that topic.¹

Personally, I was most impressed when Pope Francis asked us to pray for him. A humble man demonstrating his humility. It will be interesting to see how he will imprint this humility upon the Church.

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¹  This is not to say that BBC's coverage was poor.  The BBC is still the best international news source, bar none. And, they didn't instantly start trying to shove the new Pope into a "conservative" or "liberal" stereotype, as I'm sure the American press coverage did.

How the International Criminal Court Works

Blogging, The 1st Amendment, & the Bar

Well, the latest round of the epic battle between Horace Hunter and the Virginia State Bar has been completed.  It's a mixed decision. It's also a correct decision.

For those of you who haven't been following this, the Bar first went after Horace for not having a disclaimer on a blog he had as part of his office's website.  When Horace stood his ground, the Bar expanded its complaint against him to include the fact that he put publicly available facts about his clients and their cases on his blog. At this point, the Bar was clearly over the line and while its disclaimer complaint was upheld, a panel of judges struck down the constitutional infringement.  Of course, both sides appealed to the Virginia Supreme Court.

Last week, Justice Powell, who may well be becoming my favorite Justice between this and her Baker dissent, decided that the panel judges were generally correct, but wrong in some of its details concerning the disclaimer.

To begin with Justice Powell shoots down the idea that the the blog in question is political instead of commercial.

"Indeed, unlike situations and topics where the subject matter is inherently, inextricably intertwined, Hunter chose to comingle sporadic political statements within his self-promoting blog posts in an attempt to camouflage the true commercial nature of his blog. . . . When considered as a whole, the economically motivated blog overtly proposes a commercial transaction that is an advertisement of a specific product."

Then, she goes on to consider whether Horace's use of information in the public record was constitutionally protected.

"The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom."

Having determined that lawyers actually do have the same constitutional rights as everyone else, she turns to the disclaimer.  She agrees that a disclaimer must be placed on the blog, but then actually goes back and reads the rule and shoots down the disclaimer previously mandated by the panel of judges because it did not require the disclaimer to be "in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results."  She does not offer a valid disclaimer, instead remanding the case for further determination.

There is only one nit I think I can pick with this opinion.  The Bar initially required Horace to put the disclaimer on each and every post he put up that discussed his cases.  The panel of judges only required it to be placed on the site once (presumably the way everyone does, as a note on the blog's frame).  When you've got parties this locked in battle, that's the kind of thing which could end up with them right back in front of the Justice Powell and her colleagues.  Personally, I think the Bar is overstepping when it tries to require the disclaimer on each and every post mentioning a case as long as the disclaimer is somewhere on the same webpage and follows the rules.  We'll see if this point gets litigated.

All-in-all, it's a well written, well supported opinion. Well worth reading if your are a lawyer in Virginia (or anywhere else) with a blog.

Hunter v. VSB

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.