Ambush in Bartlette: Chapter 15

Bo Ross sat in his patrol vehicle, in the parking lot of the Ezee Stop in Yared. It was three a.m. and the store was closed. In fact, everything in the entire county was closed at this time of night. Still, someone had to be out on patrol and the midnight to eight a.m. shift fell to him and two other deputies. Prior to “the incident” Bo had been the chief of patrol, but afterward the Sheriff decided there was too much publicity and too many distractions for Bo to continue in that job and reassigned him as shift leader on the midnight shift.

“The incident” was the term the Sheriff used to describe the day Bo was almost killed. In all the movies the person shot suffered traumatic memory loss, but Bo remembered the incident about as clearly as anybody could. The Sheriff had saddled Bo with three of the least reliable deputies in the department for court security. In fact, the reason that he did not escort the Pahl brothers back to their holding cell personally was that Judge Isom called Bo back in chambers to voice his displeasure. By the time Bo left the judge's chambers Boyd and Carr had already taken everyone out of the courthouse.

Bo followed as quickly as he could and found everyone lounging in the alley. He walked off the porch and started over to the prisoners, while he told Carr to clear all the civilians out of the alley. He had just started walking over to get the Pahls moving toward the door to the Sheriff's Department when there were a series of loud noises and the Pahl brothers were both thrown backward into the building behind them. More shots followed and the civilians scattered. The two other deputies took cover behind the propane tank that provided fuel to heat the courthouse.

Bo turned and ran back to the courthouse door. It was the only way out of the alley that could be reached without letting the guy with the firearm have a clear shot. He had just gotten his key in the door when a sledgehammer hit him in the back - several times. He was slammed forward into the door and fell off the side of the porch behind bins in which trash and recyclable materials were kept. At first he was just stunned. Through a haze, he heard more gunfire and then there was a huge explosion which he felt more than he heard.

This time he was knocked out. When he came back around all of the plastic bins were on top of him and he was covered in trash. He dug out from under them and found himself in Hell. A huge how was blown into the side of the Sheriff's Office and there were flames everywhere. Everywhere he looked in the alley he saw a man with multiple bullet wounds or serious burns. He grabbed the first person he came to, one of the Pahls' attorneys, and started hauling him back to the safety of the courthouse. When they got up on the porch Bo's keys were missing. He looked around but they were nowhere to be seen, so he just started going back and grabbing other men and laying them on the porch in front of the door.

When he had all the casualties around the door, he started banging on the it and yelling for Sergeant Qualls. He didn't know how long it took, but eventually Judge Fleming opened the door and Bo started moving all the casualties inside. A couple of Mount View police officers arrived, but the fire had gotten too intense for them to come down the alley to help. After he got the wounded inside, he started perform first aid as best he could although he doubted any of it had actually helped except for the tourniquet he put on Attorney Lasley's arm.

When the judge touched Bo's arm he realized that the gunfire and explosion had made him almost deaf. Judge Fleming was yelling something Bo could barely hear as though he were at the end of a long tunnel filled with a ringing silence. After a couple seconds, Bo shook his head, told the judge to call for help, and told him to get Qualls to check to see if anyone else needed help. Then he went back to trying to render some sort of first aid.

The Paramedics took a long time to arrive and they pulled Bo off, gave him a quick once over, and sent him off to side, out of the way. He sort of collapsed once he sat down in a corner with nothing to do and the next thing he really remembered was being helped onto a gurney so the medics could transport him to the hospital.

Now the FBI and State Police were saying that the whole thing was a plot to kill him by five of his fellow deputies. Worse, Brad Dollerby, the local Commonwealth Attorney, had decided that he was going to prosecute everyone involved in the incident himself. Even worse, the Sheriff was circling the wagons and seemed to be taking steps to marginalize the people he did not trust in the department. And, clearly Bo now fell into the untrustworthy category.

It did not sit well with Bo that someone had shot him and he was getting blamed. It did not sit well at all.

Ambush in Bartlette : Chapter 14

Brad sat in the third pew on the right hand side of Mount View United Methodist.  The service had been going on for well over ninety minutes by now and showed no signs of letting up.  Ever since the new pastor arrived the services had averaged two and a half hours.  Brad did not care for the young man.  The previous pastor, Brother Carl, had been unpretentious, friendly, and (most importantly) had kept his services somewhere between an hour and hour fifteen minutes.  The new pastor, Elder Todd Brooks O.P., was young, passionate, charismatic, and driven to bring everyone to Jesus.  His services lasted at least two hours and his sermons were usually the greatest part of that.  In fact, the young Elder was somewhere around the sixty minute mark of his current sermon and showed no sign of slowing down.  He was going on about something having to do with prayer and the Apostle James.  Brad found himself unable to concentrate on the fine points of the sermon.

He glanced at his watch. It was ten thirty-six. In less than half an hour mass would start at Saint Berlinda with Maggie sitting dutifully on the third row of wooden chairs. Before Elder Todd Brooks O.P. came to town, Brad used to go to services at Mount View United Methodist at nine and then meet Maggie at Saint Berlinda for mass. However, faced with a choice, Brad was a Methodist and he would go to his church rather than hers. Besides, Mount View United was the biggest church in the county and Brad figured his membership was worth at least two hundred fifty votes every election. In a county where only about five thousand people voted during the last presidential election, two hundred and fifty votes were precious.

Things with Maggie were almost back to normal. She sniped at him a little this morning because he would not be at Father Tolton's final mass at Saint Berlinda. Brad smiled a little. His wife was starting to return to herself around him and he would soon be rid of this troublesome priest.

The most surprising thing had been Abby's reaction to all of it. Of course, living in the same house as they did she heard the whole fight between her daughter and Brad and she thought the way they were acting was silly. "My Charley and me used to have fights bigger than that at least once a week and he wasn't a fan of priests either. Sometimes I think the only reason he ever went to mass was so he could stand outside and smoke with his buddies in the Knights afterwards. Anyway, the way you two were before wasn't natural. You have to blow up once in a while to relieve some of the pressure. Otherwise you'll just start to quietly hate each other. Now, get over yourselves." Abby gave that speech after a couple days of watching them walk on eggshells around each other and she had not said a word about it since. However, she still rolled her eyes when she saw them being careful around each other.

Meanwhile, as his domestic life came back together, the county fell apart around them. An army of federal agents and state troopers hit Bartlette County on Tuesday morning. It seemed like half the town of Yared was arrested, including everyone on the town council and the three officers at the top of the six person police force. Then they arrested two deputies from the Sheriff's Department, Sergeant Ian Minor and Captain Jeff Sargent. When armed men broke in his front door, Jeff scrambled for the rifle in his closet and they tazed him in the back just as he was pulling it out, causing him to fire into his ceiling.

Brad only learned about this when he was awakened by a call from the Sheriff. Sheriff Minton was beside himself. After Brad got the Sheriff settled down he got a quick shower and headed into the office. Then he started making calls. Every call to FBI Special Agent Mazzota went straight to voicemail. When Brad called the local State Police post, the phone was answered by Kyle Dotson, the First Sergeant. Kyle was polite, but he was clearly under orders not to talk to anyone in local law enforcement. After a couple minutes Kyle made an excuse and hung up. Brad was left sitting in his office at six-thirty with nothing to do.

Before seven-thirty, the Sheriff called four times. Each time he was more worked up, but had no new information. At eight, Brad started to walk out of the courthouse to go down the street to get breakfast, but when he opened the door and saw the street flooded with police cars he went back inside, called the Sheriff, and found out that every deputy had been called in to the office.

By nine both Yusif and Paula were in the office. Both had heard about the arrests on the news and had questions, but Brad knew no more than they did. He tried calling the Attorney General's office in Richmond. He got fobbed off on some flunky who told him that they would get back to him "as soon as practicable." Then, he made another fruitless attempt to call Special Agent Mazzota. It was at this point he decided to treat the situation as a political problem rather than a law enforcement one.

He started at the top and worked his way down. Brad headed Senator Salyer's last campaign in far Southwest Virginia and his first call went to the Senator's office in D.C. Surprisingly, he got through to her on his first call. She was watching the news herself and wanted him to tell her what was going on. When Brad told her he was being frozen out she seemed to take it as a personal affront. Her voice was tinged with determination and a bit of anger as she promised him that someone in the FBI would be in contact before the day was over. After finishing that call, Brad began calling every delegate or senator he knew in Virginia's General Assembly. Once he mentioned the fact that Senator Salyer was helping with the FBI, quite a few of them promised to help with the Attorney General and the State Police.

At around eleven there was an announcement made to the press by the U.S. Attorney for the Western District of Virginia, but no one had contacted Brad. Finally, at around three in the afternoon, a call came in from Captain Fraley at the State Police Division headquarters in Wytheville. The Captain had direct orders from Superintendent Boles to brief Brad on the operation and if he could come to Wytheville the next morning the State Police would fill him on everything they knew. Shortly after that a call came from a D.C. number and a Special Agent Sanderson told him that Special Agent Mazzato would be at the Wednesday briefing to answer any questions he had for the federal government.

The Wednesday morning briefing was not a friendly affair. Nevertheless, it was eye opening. Before they began, Brad was required to sign a document stating that he would not disclose the information in the briefing to anyone in local law enforcement – including the Sheriff and his own deputy prosecutor. Then the FBI took over and briefed Brad.

There was nothing terribly surprising about the first part of the briefing. The Poplins were involved in a large scale drug ring which enjoyed their protection in Yared. Everyone in Bartlette County knew the Poplins were crooked, although their level of involvement in a multi-state drug ring was more than Brad had thought them capable of. He knew they were involved in cock fighting and gambling on high school football, but never suspected they were doing much more than providing a safe haven for small time drug dealers in town. Still, it was not that he thought large time drug dealing was beyond their desire; he had just thought it beyond their grasp.

In fact, the Sheriff's refusal to do anything to clean up Yared was one of the main frustrations of Brad's time as Commonwealth Attorney. As it turned out, the State Police and FBI were also less than impressed by the Sheriff's inactivity. For a long time they suspected he was involved. However, after planting false information with the Sheriff three times and waiting to see if there was any reaction from the drug ring, they were eventually satisfied that he was not passing information to its members. Their conclusion was that the Sheriff was either not willing to risk the political fallout of cracking down on Yared or that he was lazy – probably both.

However, they were convinced that the Sheriff's Department had a number of corrupt deputies. Of course, Brad knew which deputies had been arrested, but it was still something of a shock when they told him that Jeff Sanger was the person who decided that Bo Ross had to be killed. Apparently, he thought was that with Bo out of the way he would have the inside track to become the next sheriff. Ian Minor, Dave Jordan, and Oscar Mickleson had each pointed a finger at Jeff.

When Brad pointed out that the former deputies and Yared police officer lacked much in the way of credibility, Agent Mazzato played a number of recordings which the FBI recovered from Ian Minor's phone. The man had recorded a lot of conversations with his fellow conspirators. In many of them there were discussions about what Jeff wanted done and there were two in which Jeff told Ian he wanted Bo out of the way so that he could become sheriff. It was damning.

The first attempt to kill Bo had been at a trailer on Baylor Ridge. They waited until the other two deputies on duty were tied up elsewhere and then called in a domestic disturbance. With everyone else busy, they knew Bo would have to respond himself. The plan was to kill him and blame it on the man who lived in the trailer. However, Bo got the call while he was getting some coffee with Trooper Pillay and, bored at one in the morning, the trooper decided to back him up. When the deputies saw two cars arrive with flashing lights and realized the second was a state trooper they retreated into the woods and left.

The second attempt to kill Bo was more complicated. The Pahls were coming to trial and everyone knew the Sheriff would assign Bo to look after court security for such an important case. Technically Teddy Qualls was the bailiff, but he was over sixty years old and retired on duty. Generally, Judge Isom just let him sit in a chair and doze during court as long as the Sheriff sent over help during serious cases.

It was easy to get Carr and Boyd assigned as court security. The Sheriff had no money for overtime and everyone knew a jury trial would mean working extra hours. When Boyd and Carr volunteered it saved the Sheriff from forcing someone else to work without getting paid.

According to the FBI, there were two plans. The first called for Carr and Boyd to take the Pahl brothers from the courthouse, but not deliver them to the holding cell in the Sheriff's Department. They would stop in the alley and give the Pahl brothers a couple of cigarettes to smoke. After some time, Bo would come out of the courthouse to see what the delay was. As soon as the door closed behind Bo in the alley, Minor and Jordan were going to open fire. If they could get clear shots they would shoot the Pahl brothers. If there was no clear shot they would shoot over everyone's heads. However Bo reacted, once he turned his back on the deputies in the alley, Carr was going to pull out an old pistol he had taken during a search of the Pahl house and shoot Bo in the back. Everything was going to be blamed on an escape attempt by the Pahls.

Unknown to Carr and Boyd, the actual plan was for everyone in the alley to die. Minor and Jordan would start by shooting the Pahls. Then, as soon as they saw Bo go down they would open fire on the deputies as well. They were also going to shoot a hole in the propane tank in the alley and set off a fireball to destroy evidence and stun anyone still alive so that they could walk down the alley and finish the job.

However, once time came to put everything in action, things starting going wrong. When the deputies started to take the Pahl brothers out of the courtroom their attorneys insisted on walking with them. The deputies refused at first, but Grant Lasley started to throw a fit and Teddy Qualls told them to let the civilians walk with them. Qualls was a sergeant, and Bo was back in the Judge's office at the time, so the deputies had to let the civilians come with them. They stopped in the alley as planned with a herd of people instead of just the two prisoners. The two deputies took a position on the side of the alley next to courthouse, leaving the others clustered on the side next to the Sheriff's department.

Bo came out about fifteen minutes later. Minor and Jordan were in a car in the parking lot and as soon as Minor saw the door close behind Bo he pulled the car up and Jordan opened fire from the back seat with an AR15. He sprayed fire at the Pahls and the civilians. When Bo ran to open the door to the courthouse Carr shot him in the back four times. Three of those bullets hit the kevlar vest Bo was wearing and, although the vest held, the force of the bullets slammed Bo into the door and knocked him off the porch behind the trash cans.

While that happened, Minor got out of the car with his Stevens 200 30-06 and fired four shots at the propane tank in the alley. One round missed entirely and one hit at enough of an angle that it ricocheted into the ground. However, two of the bullets struck true and propane spewed into the alley in a white cloud. Jordan kept firing the AR15 to keep everyone pinned down and hoping to set off the propane. After a few seconds they realized gunfire was not going to set off the gas and fell back on their backup plan. Minor had a street flare ready; he lit it and threw it into the alley.

The explosion was much larger than anything they had planned for. Special Agent Mazzota spent several minutes trying to explain the forensic lab's explanation for the size of the explosion, but most of it went over Brad's head. Somehow the weight of the gas, the heat of the day, and the enclosed area all combined to create an explosion which tore into the Sheriff's Department and started secondary fires. It also scared the hell out of the shooters. They jumped back into the car and took off.

Then they began the coverup. They drove the car, which had been purchased for a couple hundred dollars cash from a man in Kentucky, out to an old strip job and set it on fire. After that Minor drove to Pikeville, Kentucky where he would claim to have spent his day off shopping and eating at Jerrys. Jordan was supposed to do the same thing in Bristol, Virginia. However, a state trooper recognized the "Don't tread on me" flag painted across the entire tailgate of Jordan's truck and chased him down to tell him about the explosion. Thus, an hour after causing the explosion Dave Jordan was on the scene investigating it.

After they realized that the people in the alley survived, the conspirators became hypervigilant - looking for anything that might signal someone knew what they had done. The appearance of an unknown attorney trying to speak privately with Yusif spooked them. That was the reason Jordan went to Roanoke and beat the attorney to within an inch of his life. And it turned out to be for nothing; the attorney had nothing to do with the murders. He had been hired by the Democratic Party of Bartlette to feel out Yusif as a possible candidate for Commonwealth Attorney in the next election.

Brad smirked to himself. If they'd just approached Yusif directly that poor guy in Roanoke wouldn't be missing a couple teeth right now.

In any event, the attack in Roanoke triggered the reaction by the feds. When Brad left the State Police office the only question in his mind was how many people he would be charging with capital murder.

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.)

----------------------------


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.