The Great 2016 U.S. Supreme Court Freakout: DUI's

Every year there is a freak out over some decision from the U.S. Supreme Court. Sometimes, it's mostly a tempest in a teapot and that seems to be the case with this year's big paroxysm, Birchfield v. North Dakota, JUN16, USSC No. 14-1468.

Birchfield is a consolidation of three different drunk driving cases. It's poorly organized and requires at least a couple readings before you can suss out its organization and ruling. Everyone seems to be jumping to the false conclusion that it changes things an incredible amount, but if you actually read it rather than just listening to third person hype it doesn't (at least not in Virginia).


QUESTION:

The question is poorly laid out in the opinion so I'll quote the two sentences exactly:

The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches. 

Put more succinctly, can the government impose criminal sanctions for a person refusing testing to see if that person is intoxicated?


ANSWER:

The answer? Yes for breath tests. No for blood draw tests.


CASE ORGANIZATION:

The case rambles around, but it is organized into three possible rationales. First, do exigent circumstances justify the testing? Second, does search incident to arrest justify testing? Third, does implied consent justify testing? These three are confused in that the case is addressing both breath test and blood draws across the three questions.


EXIGENT:

To begin with, the court reiterates its holding in Missouri v. McNeely, APR13, USSC No. 11-1425, that while there are circumstances, to be determined on a case-by-case analysis, that justify an exigent blood draw the fact that the body metabolizes and removes the intoxicant is not enough by itself to make an exigent circumstance.


SEARCH INCIDENT TO ARREST:

A breath test is allowed as a valid search incident to an arrest because there is no expectation of privacy in air in the lungs and it can only provide evidence of drunkeness.

A blood test is not a valid search incident to arrest because the breath test is available, it is a significant bodily intrusion, and it can be used to develop evidence of more than drunkeness.


IMPLIED CONSENT:

The Court starts by stating very clearly,

Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.

So, under implied consent, non-criminal penalties for refusing a blood test are still valid. However, the court makes short shrift of the argument that criminal penalties should still be allowed.

Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

APPLICATION UNDER VIRGINIA LAW:

First, let's set out what the rule of this case is: A government cannot criminalize the refusal to submit to a blood test in order to prove drunk driving.


APPLICABLE VIRGINIA LAW:

§ 18.2-268.3(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.

The green part is clearly allowed. The parts in yellow are allowed for breath tests, but not for blood tests. It's as simple as that. Here's the only thing which needs to change in the way in which officers handle DUI's in Virginia: When the officer reads implied consent for a blood draw he cannot mention any possibility of a criminal prosecution. If he does and the suspect relents and allows the blood draw it will be suppressed by the courts.

Otherwise, everything is just the same as it was. Carry on. Nothing to see here. At least until the Supreme Court goes back in session this Fall and people find some other tempest in a teapot to make them start screaming about falling skies again.

Service Dog Fraud

Sadly, one of the statutes just put in place by our legislature is one putting a $250 fine on fake use of a dog under claim that it is a service dog. You'd think this wouldn't be much of a problem, but I know that I have spoken with more than one inn keeper about people claiming that all sorts of dogs are service animals in order to keep Spot with them in their hotel room. So, I thought I'd try to put down what the state of Virginia law is in this matter.

To begin with, let's look at the new statute: 

§ 51.5-44.1. Fraudulent representation of a service dog or hearing dog; penalty

 Any person who knowingly and willfully fits a dog with a harness, collar, vest, or sign, or uses an identification card commonly used by a person with a disability, in order to represent that the dog is a service dog or hearing dog to fraudulently gain public access for such dog pursuant to provisions in § 51.5-44 is guilty of a Class 4 misdemeanor [up to $250 fine].

I can't find anything under Virginia law specifically set up to give a handicapped individual a specific ID card. Maybe the DMV issues cards listing specific disabilities as part of providing ID cards. Consequently, I think the manner in which service dogs are identified is by the equipment they are wearing. In fact, that seems to be the exact method of identification called for in § 51.5-44(E):

 E. Every totally or partially blind person shall have the right to be accompanied by a dog in harness trained as a guide dog, every deaf or hearing-impaired person shall have the right to be accompanied by a dog trained as a hearing dog on a blaze orange leash, and every mobility-impaired or otherwise disabled person shall have the right to be accompanied by a dog, trained as a service dog, in a harness, backpack, or vest identifying the dog as a trained service dog, in any of the places listed in subsection B without being required to pay an extra charge for the dog, provided that he shall be liable for any damage done to the premises or facilities by such dog.

 Notice that there are only three types of service dogs allowed and each has to be wearing some sort of identifying device. This is the only real identifier that an inn keeper could use to differentiate Spot the pet from Spot the service dog. To be fair, one would expect that in the vast majority of cases it will be clear if someone has vision, auditory, or mobility problems.  However, the "otherwise disabled" leaves a lot of wiggle room. And if anybody wanted to cheat in that area it is ridiculously easy to buy the gear which proclaims a dog is a service animal.

The only real limit here is that "[t]he provision of emotional support, well-being, comfort, or companionship shall not constitute work or tasks for the purposes of this definition."  Va. Code § 51.5-40.1.

In the end, I have to conclude that hotels and motels should be within their rights under Virginia law to refuse service to people without the obvious handicap who don't have the dog properly outfitted. Beyond that, if anyone is caught faking they could end up coming to court to get fined. If the innkeeper is suspicious he should call local law enforcement to investigate.

This Year's Vacation: Day 01

This year's trip began Saturday with a drive to Rome, Georgia to watch the Rome Braves host the Asheville Tourists (with a side trip en route to play disc golf in Dalton, Georgia).

Rome has shown all the creativity in choosing its name that all the Braves minor league affiliates do (except for the awesomeness that is the Carolina Mudcats) and is yet another "Braves." However, in Rome they have concentrated less on the "Braves" part and more on the "Rome" part.  The predominate logo you see is a baseball with a centurion's helmet. When you don't see that the logo you see usually involves a Roman column with a tomahawk. I really like the helmet logo and had to stop myself from buying more than  just the hat I planned to. If I have enough money left, maybe I'll swing by on my way back to Virginia and buy a shirt or even a jersey.

The Stadium: Rome has a pretty decent stadium. The concourse was surprisingly well filled with various food vendors of different types and at least three souvenir sellers in addition to the main shop. Most of the seats are located around the infield, although there is a place where you can sit on the grass beyond the right field wall. On both sides of the field, once you get to the outfield there are places for people to sit on the grass and watch the game and behind those are tables for people to sit and watch the game. All-in-all, it's a solid single-A ballpark.

The Show: I didn't get to see the local mascots in action much because Rome had some "famous" imported mascot whom I had never heard of. He did a fairly good job with skits between innings that kept the crowd entertained. They also had cheerleaders. And I don't mean the one or two girls (or guys) standing on the dugouts you see at many places who do a skit or two. Nope. Five or six girls were on each dugout between innings and up in the crowd during play. I've not seen that in American baseball before; it felt like I was watching Taiwanese games in the Premiere 12.

The Game: Rome and Asheville played an interesting game. Asheville seemed to have the better fielders and the Braves made some errors that hurt them and allowed the Tourists to play small ball and score single runs in both the third and the sixth. Rome got a homer from Jonathan Morales in the bottom of the seventh to bring the game within one run.

When the bottom of the ninth came around and the Braves were only down by one the crowd, which had shown a fair amount of interactive interest to that point, went nuts. The guys running the scoreboard encouraged them to scream between each pitch, ran the "charge" bugle call, and played the music for the tomahawk chop (every kid in the stadium knew it and did it).  Asheville's pitcher got rattled and walked two batters, which made the crowd get even louder and more worked up. Unfortunately for the hometown fans, then the Asheville pitcher calmed down and struck everybody else out. Still, it was great seeing the crowd become so live and into the game.

Overall, it was a fun experience and a good way to start this year''s Big Vacation. It's not quite the same experience as starting last year's at the Dayton Dragons, but nothing I've seen in the lower leagues is. If you are in Georgia it's worth making a trip to stop in Rome for a ballgame.

The First Hearing Before a Judge

For a long time now, I've explained to people that the first time a defendant sees a judge in Virginia is not an arraignment. Most of the time I get a glazed look and bored nod and people go on calling it arraignment and some judges even toss an arraignment into the first hearing. So, once again today a situation arose and I had to explain it. Since I have it fresh in mind, I thought that I'd put it all down here so that people would actually know once and for all - the first pretrial hearing in front of the judge is not an arraignment.

We begin with 19.2-158, in Chapter 10 - Disabled Judge or Commonwealth and Court Appointed Counsel (yes, I know it's in a strange location - blame the General Assembly, not me), which requires a person who is incarcerated to be brought before the Court on the next working day after he is charged. This hearing has two, and only two, purposes: "the judge shall inform the accused of [1] the amount of his bail and [2] his right to counsel." The section then goes on to describe how another pretrial event shall occur (bond hearings).

On the other hand, the section which deals with arraignments, 19.2-254, is in Chapter 15: Trial and It's Incidents.  This section gives a general outline of how a trial is to proceed, starting with arraignment.

Going back to the first pretrial hearing (let's call it the Notification Hearing), the last paragraph starts with "No hearing on the charges against the accused shall be had until the foregoing conditions have been complied with" and I think this is the reason that those who make bond are also required to come into court for a notification hearing.

The notification hearing has a bare minimum requirement as stated above, but it's also a natural time to accomplish some other requirements. The judge is required, at some point, under 19.2-159 to determine whether the defendant needs a court appointed counsel. Although not required, the logical time to do this is during the notification hearing. And in some jurisdictions where the judge rides a circuit the only time a bond hearing can be done is the day of the notification hearing. And some places actually do a faux arraignment during the notification hearing.

Where do they get the idea that an arraignment should be done at the notification hearing? Most people I ask give an answer which boils down to "because we've always done it this way." More likely, the judges picked it up off of TV or a nearby State (Kentucky for example) that does early arraignment. In the end it doesn't really matter. The judge is clearly required to do the actual arraignment at the start of trial and an early arraignment accomplishes nothing. In fact, in some situations it has been specifically held to be ineffectual. See Hutchins v. Commonwealth, SEP99, VaApp No. 1439-97-3 (en banc, holding that early arraignment does not toll speedy trial).  Mind you, I don't expect the jurisdictions which do the faux arraignment to stop adding the surplusage to their notification hearing. It doesn't really harm anything. It's just a minor waste of time and there's no way that outbalances "we've always done it this way."

Indigent Defense In Virginia - Pay

I haven't done indigent defense work in over nine years now, so I can't claim to be the most up to date expert on the nuances anymore. Thus, when a colleague asked me some questions about the manner in which court appointed counsel are paid I had to give an answer qualified by "but I haven't looked at that statutes in at least ten years."  After that discussion, I decided to look and see what the current state of the law is and it has changed significantly since I moved over to prosecution.

To begin with, there are certain (1) requirements. An attorney (a) has to turn in a detailed accounting of his time in the case (b) within 30 days of the completion of the case. After that the attorney is paid as follows:

Court	Basic Pay Per Charge	1st Waiver	2nd Waiver
District Adult	$120	+ $120	Unlimited
District Juvenile (Misdemeanor Analogue)	$120	+ $120	Unlimited
District Juvenile (Felony Analogue)	$120	+ $650	Unlimited
Circuit Felony Death Penalty	"An amount deemed reasonable by the court"	N/A	N/A
Circuit Felony more than 20 Years	$1235	+ $850	Unlimited
Circuit Felony less than 20 Years	$445	+ $155	Unlimited
Circuit Misdemeanor	$158	+ $0	Unlimited

Basic Pay Per Charge:

District Courts: In the district courts, (2) it seems clear that (a) the defense attorney is to be fully paid for the first charge. Back when I was practicing, the defense attorney didn't even have to account for his time to get paid for that first charge. However, in 2007 the General Assembly took out the "without a requirement for accounting of time devoted thereto" language and added the "detailed accounting" language, so (b) the defense attorney must now account for his time even on that first count. (3) For charges beyond the first the defense attorney must show that he spent more time in order to get paid. 

FIRST WAIVER: For all cases involving an adult or any case involving a minor in which an adult could be punished with 20 years or less, the trial judge can pay up to another $120.  For a case involving a minor in which an adult could be punished by more than 20 years, the trial judge can pay up to another $650.

Circuit Court: There is (4) no provision for any minimal payment in Circuit Court. However, it is clear that (5) if a charge is reduced to something that would pay less the defense attorney is still entitled to pay under the original pay scale.

 FIRST WAIVER:  For all cases in which the defendant could be punished by more than 20 years, the trial judge can pay up to another $850.  For all cases in which the defendant could be punished by 20 years or less, the trial judge can pay up to another $155. No first waiver on misdemeanors in circuit court.

SECOND WAIVER - ALL TYPES OF CHARGES: 

The second waiver is unlimited. However, it has to get cleared first by the trial judge and then cleared by the chief judge of either the district or circuit.

Reasonable Expenses: There is a paragraph which is often badly misconstrued by courts in paying indigent defenders. It is the paragraph which allows defense attorneys compensation for expenses. I'll quote it here so you can read it yourself:

The circuit or district court shall direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case. Counsel appointed by the court to represent an indigent charged with repeated violations of the same section of the Code of Virginia, with each of such violations arising out of the same incident, occurrence, or transaction, shall be compensated in an amount not to exceed the fee prescribed for the defense of a single charge, if such offenses are tried as part of the same judicial proceeding. The trial judge shall consider any guidelines established by the Supreme Court but shall have the sole discretion to fix the amount of compensation to be paid counsel appointed by the court to defend a felony charge that may be punishable by death.

Basically, this paragraph allows payment for expenses and limits payments in cases wherein the same type of charge is charged multiple times (limited to the amount that would be the fee for one charge).

However, this paragraph has been badly misconstrued by various judges who have used it to limit fees which are charged by indigent counsel. That's a poor reading of the statute. This subsection's purpose is clearly laid out in the opening sentence: "payment of such reasonable expenses." Nothing in the rest of the paragraph indicates a movement away from that purpose. In fact the word "compensate" has a shaded meaning. It could mean being paid for time lost defending the case, but that is a strained reading. Instead, a more regular reading of that language would be that the defense attorney is to be paid back for outlays she has put forth out of her own pocket.

IF THE DEFENDANT DOES NOT SHOW FOR COURT:  If (6) the defendant has (a) a capias (bench warrant) or (b) show cause summons issued, and (7) the defense attorney has appeared in court at least once, then (8) the defense attorney can get paid after the defendant has been missing for a year.

All this and more can be found in Va. Code 19.2-163.

Where Can I Carry My Firearm

Virginia, is one of those States which believes that there's not just a right to bear arms, but an obligation (at least where I live).  However, there are places and times when a person is forbidden to carry. Generally, these would fall into two areas of prohibition: private and statutory prohibitions.

The first is fairly straight forward. If a private citizen or organization specifically denies you the right to carry a firearm on its property you cannot carry a firearm on their property. The private citizen or organization would have an obligation to notify you that you cannot carry a firearm on its property, but as a non-governmental entity it has the right to restrict entry. If the private entity posts a "No Firearms Allowed" sign then it has effectively put up a no trespassing sign per Virginia Code 18.2-119. A person who walks into a store or residence past that sign knows she is specifically denied permission to be on the premises with a firearm. Then it simply becomes a matter of status. If her status is that of someone with a firearm she is in a location she is forbidden to be in. Therefore, she is trespassing.

And, before anyone starts screaming 2d Amendment at me in the comments, remember this is an interaction between a citizen and a private entity. The 2d Amendment only applies in dealings between a citizen and the government.

Statutorily, the General Assembly has passed several laws in Virginia which restrict where firearms can be carried. As these impinge on a right guaranteed in the Bill of Rights these should be subject to a strict scrutiny standard. However, the US Supreme Court has flinched away from explicitly stating that this is the standard. In fact, it has created some sort of weird, hybrid standard where citizens are entitled to own and use firearms (1) "in common use" at a set period of time, but only if the citizen does not fall into a certain (2) status (e.g. felon or mentally ill) or possess them in a (3) sensitive place (e.g. schools or government buildings). See District of Columbia v. Heller, 554 U.S. 570 (2008). I'm not going to address the first two parts of this test today; instead, I am going to mostly look at those places the Virginia General Assembly has declared by statute to be "sensitive."

A quick survey reveals the following statutes:

Courthouse:

18.2-283.1 - It is a class 1 misdemeanor (up to 12 months) for anyone except law enforcement (and the local treasurer?) to carry a firearm in the courthouse. - This makes sense in that there is a lot of emotional conflict in a courthouse and (perhaps most importantly) there is a constant possibility of an armed attempt to free an incarcerated inmate from a known location at a known time.

Schools:

18.2-308.1 - It is a class 1 misdemeanor (up to 12 months) to carry a firearm onto school grounds, a school bus, or a place where an extracurricular event is occurring. It is a felony with 5 mandatory years in prison if someone takes a firearm into a school building with intent to use it. - Hard to argue that a school isn't a sensitive place from which firearms should not be excluded.

Place of Worship:

18.2-283 - It is a class 4 misdemeanor ($250 fine) to carry a firearm "without good and sufficient reason" into a place of worship while a religious meeting is taking place. - Hmmm. Yes, this is a sensitive place, but also a private place. It seems to me that this should be something that should be decided by whomever makes decisions for a particular place of worship and handled under the trespass rules as laid out above.

Bar:

18.2-308(J3) - It is a class 2 misdemeanor (up to 6 months) to carry a concealed weapon in a place that serves alcohol if you drink any. - This is actually a mix of location and activity. It does not seem to fit the "sensitive place" restriction particularly well and perhaps is more of a status restriction (person drinking alcohol). It also does not forbid a person openly carrying from having a firearm in a place that serves alcohol.

Airport Terminal

18.2-287.01 - It is a class 1 misdemeanor (up to 12 months) to carry anything which expels a projectile in an airport terminal. - This is obviously both a public and sensitive space.

Certain Cities:

18.2-287.4 - It is a class 1 misdemeanor in public areas in the (a) cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, and Virginia Beach and in the counties of Arlington, Fairfax, Henrico, Loudoun, and Prince William to carry a (b) rifle or (c) pistol with a magazine of more than 20 rounds and a (d) shotgun which holds more than 7 rounds of its longest round. - This is a mix of the sensitive place element and the common use element. It's hard to argue that all the public areas excluded are sensitive places, so this is really more of a declaration that these firearms cannot be carried because they are not in common use. The problem with that logic is that the firearms are not forbidden everywhere.

These are all the location related bans I found. It is not an exhaustive list of limits on firearm possession and I suspect there may be some more location restrictions squirreled away in parts of the Code outside of Title 18.2 (Virginia's criminal law).

An Article 4 Free Inhabitant Doesn't Have to Have a License

Cudos to this officer. He remains calm throughout the entire incident in the face of incoherent babbling about **THE ARTICLES OF CONFEDERATION** and even when she starts screaming "rape" when he removes her from the car. [ignore the title of the video; this is not about feminism]

Prosecutorial Primacy: AG or Commonwealth Attorney?

Piedmont asked an interesting question in a comment on the prosecutorial powers of the Attorney General post:

The AG has authority to institute and conduct the enumerated types of prosecutions, but it's certainly not exclusive. What happens if both the CA and the AG want to prosecute? Can the AG step into and take over the CA's case?

The problem here begins in the Virginia constitution. A Commonwealth Attorney is a "constitutional officer" created under the local government portion of the constitution. Art. VII sec. 4. As such, the office does not fall under any branch of the government in Richmond. However, the only constitutional instruction for the office is that

"The duties and compensation of such officers shall be prescribed by general law or special act." Id.

The Attorney General, while an independent elected office, is clearly a part of the executive branch of the Richmond government created in Article V sec. 15. And yet again, the constitutional instruction as to his function is rudimentary:

"He shall perform such duties and receive such compensation as may be prescribed by law."

The language is effectively identical and therefore not very helpful to our analysis. So next we turn to the statutes.

The last post about the Attorney General examined the statute which outlines the statutory powers granted to and limitations within which the Attorney General must operate

The parameters within which the Commonwealth attorney operates are generally laid out in Va. Code Sec. 15.2-1627 - most specifically in subsection (B):

B. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.

So, the CWA has power over all charges starting at class 3 misdemeanors (maximum punishment $500). The AG has four basic functions it can do (1) assist the CWA without the CWA's permission [lynching crimes], (2) assist the CWA with permission [ID theft, street gang activity in prison, & cigarette sales laws], (3) prosecute with the CWA's permission, and (4) prosecute without the CWA's permission [see prior post for 3 & 4]. It's this last power which is interesting. There does not appear to be a primary prosecutor in those cases which the AG can pursue without a CWA's approval. Thus, there appears to be concurrent jurisdiction which would mean a race to conviction (assuming the CWA and AG are at odds) with the first to convict having the primacy of place because of double jeopardy protections in both the Virginia and US constitutions.

However, I think that the concurrent jurisdiction problem is solved by who controls the grand jury. While a grand jury is regularly impaneled by the local judge, only the CWA, after receiving information from law enforcement "may in such case issue or cause to be issued a summons for any witnesses he may deem material to give evidence before the court or grand jury." Va Code 19.2-201. As well, the only legal agency which can request a special grand jury is the CWA, Va Code 19.2-206, and the only legal agency granted authority to assist the special grand jury is the CWA. Va Code 19.2- 210. Finally, while the AG must approve applications for multi-jurisdictional grand juries, Va Code 19.2-215.2, two or more CWA's must apply for a multi-jurisdictional grand jury to the Virginia Supreme Court. Va Code 19.2-215.3. In order to participate in the multi-jurisdictional grand jury (and subsequent prosecutions) the AG must be invited in by the applying CWA's. Va Code 19.2-215.10. Since "no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction or unless such person, by writing signed by such person before the court having jurisdiction to try such felony or before the judge of such court shall have waived such indictment or presentment" the grand jury is a choke point which the Attorney General cannot get past without a defendant agreeing to waive it.  Va Code 19.2-217. 

So, the answer is, because of the AG's lack of access to the grand jury, the CWA has primacy in almost all prosecutions. The only time an AG could prosecute something without the CWA approving at some point would be (1) if the AG had the power to prosecute without the CWA's approval, and (2) the AG and the defendant agreed to go forward on an information rather than the defendant standing on his statutory right to a finding by a grand jury. That seems an unlikely scenario, but it is legally possible.

Ambush in Bartlette: Chapter 37

"Ladies and Gentlemen," Gil stood facing the twelve jurors, "the prosecutor has just spent over an hour telling you why he wants you to agree to kill Jeff Sanger. He wants you to vote to kill that man,” Gil pointed at his client, “who was not present during the shooting, for the death of a person he could not possibly have known was there. Even if you accept everything the prosecutor tells you as true, the only deaths Jeff could be responsible for were those of the rapists and the deputies. You’ve already told the prosecutor that you don’t agree with him on those charges.”

“Even if you accept everything the prosecutor tells you as true, neither the attorney nor the priest were people Jeff wanted dead, meant to kill, or even knew would be in that alley. The government tells you that two other people made the decision made the choice to start shooting even though there were people in the alley who were not supposed to be there.”

“Even if you accept everything the prosecution tells you is true, the two men who actually killed everyone could have left. The government’s evidence told you that on a previous occasion, when another person was with Robert Ross, they walked away from an attempt to kill him. Therefore, even were you to believe every bit of evidence which the prosecutor has told you, you know that it was the choice of the two men who actually killed Father Pahl and Keith Tolliver to do so - not the choice of Jeff Sanger.”

“No knowledge of their presence. No intent to kill them. No participation in the shooting. No part of the decision to shoot. You may agree with the prosecutor that Jeff is responsible for these deaths. However, allowing the government to kill him for choices he did not make - choices he could not make - is far beyond holding someone responsible. It moves into the realm of vengeance. It is in the realm of ten drops of their blood for every single drop of ours.”

“Vengeance is God’s role. Justice is what we seek in this venue. In that spirit, we ask that you return a just sentence. A sentence which reflects the facts which the government has shown, not the vengeance the prosecutor is trying to force upon us all.”

-----------

“That man,” Brad pointed at Jeff Sanger, “Arranged for the murder of everyone in that alley. Not only did he set it up, he did it in the most in-your-face way that he could. He had his men ambush them in the alley between the courthouse and the Sheriff’s Department. He had them do it in broad daylight when it would be almost unimaginable that no one else would be in the line of fire. People walked down that alley to the parking lot. People walked on the sidewalk on the other side of the alley. People went into that alley to smoke because it wasn’t allowed in the courthouse or sheriff’s office. He knew an innocent person would probably be in that alley. And he sent his assassins anyway.”

“Why? Because he wanted Bo Ross killed. He wanted Bo out of the way because Bo is honest and competent. He wanted Bo out of the way because Bo was going to be the next sheriff. Jeff Sanger wanted to be the next sheriff and he wanted to protect his criminal activities. He was willing to kill anyone in that alley to get Bo.”

“We all know who died in that alley. On any other day it might have been a clerk from the court taking a smoke break or a 9-1-1 operator walking back to her car or someone passing by the front of the alley on his way to the Food Time on his way to buy groceries. But this time the innocent people in that alley were a lawyer and a man of God.”

“Father Theodore “Ted” Pahl was standing in that alley wearing a black shirt with a white collar tab. There was no way they didn’t realize he was a priest - a man who dedicated his life to God. And yet, they were so dedicated to Sanger - and scared of him - that they opened fire and tried to kill everyone in the alley. They even went so far as to blow up the big propane tank that was in the alley to make sure everyone got killed.”

“Jeff Sanger sent his men to kill everyone they found and they killed a bunch of people - two of whom were entirely innocent: Keith Tolliver and Father Pahl. You don't get to kill everyone who was there and then claim that you shouldn't get the appropriate punishment because you didn't know the exact person who would be there."

“There’s an old legal parable which is repeated a lot because it’s true. In it a man kills his parents. After he is found guilty of killing them his attorney argues that the man should get a lenient sentence because he’s an orphan. Every attorney in the world has heard that story a hundred times, because it shows something we all know to be true. A defendant, through his attorney, will argue anything to avoid the punishment he should get. In this case the argument is ‘I planned to kill a bunch of people in an alleyway, but I shouldn’t be held responsible for killing some good people who were there because I didn’t exactly know which good people might be there.’”

“Well, there were good people there. A gentleman who dedicated his life to the law and his family. A priest who dedicated his life to God and his church. He deserves the maximum punishment you can give him for each murder.”

“Punish him for what he did. Give him the maximum because we cannot do anything more. Life in prison is a pale substitute for the life he has taken from Keith Tolliver, but that is all I can ask you to do to try and balance those particular scales. Holding him responsible for killing a priest, a man of God, a man who did no wrong and spent his life trying to save others and serve others requires a heavier weight to balance the scales. We should never ask for the death penalty lightly, but sometimes even it is not enough to balance the scales. We cannot bring the good of a godly man back all we can do is ask you to hold the man who killed him responsible. The scales will never be brought back to actual balance, but we mortal souls can only do so much. And we ask you do what you can to bring the scales as close to balance as we can. Give him the death penalty he has earned for himself."

Bills Of Particulars In Virginia Criminal Law

A Bill of Particulars are a form of discovery in which a party seeks answers to particular questions. As I understand it, they are a widely used discovery tool in civil practice. However, for those of us who practice criminal law (at least in Virginia) it is a sort of extraordinary discovery tool available only in specific circumstances.

The primary statute which addresses bills of particulars in Virginia is Va. Code § 19.2-230:

A court of record may direct the filing of a bill of particulars at any time before trial. A motion for a bill of particulars shall be made before a plea is entered and at least seven days before the day fixed for trial and the bill of particulars shall be filed within such time as is fixed by the court.

Of course, that doesn't really tell us anything outside of the scheduling of such a motion. T actually find the parameters within which bill can be filed we have to look (1) to case law, and (2) cases involving certain constitutional issues under Va Code § 19.2-266.2.

(1) CASE LAW

The appellate courts in Virginia have not viewed bills of this types favorably and the general rule is that they are only available if the defendant cannot determine what he is charged with under the indictment.

The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more. However, when the statutory language does not in itself fully and clearly set forth all material elements of the offense, a trial court may direct the filing of a bill of particulars. The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.  Sims v. Commonwealth, 28 Va.App. 611 (1998).

The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more.  Swisher v. Commonwealth, 256 Va. 471 (1998).

Practically, this lays out two circumstances in which a bill of particulars is allowed. (a) First, an indictment could reference a statute which references a common law crime (a regular occurrence in Virginia). (b) Second, the indictment could reference a statute which contains more than one offense.

(a) Referencing Common Law

Reason Needed:  The first situation is commonplace in Virginian law. For instance, there is no statutory definition of larceny. Therefore, an indictment for grand larceny is charged under Va. Code § 18.2-95:

Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.

There are some elements above which added to the common law elements of larceny make the theft a grand larceny (felony), but nothing actually defines larceny. Therefore, if (1) you can stand in front of a judge with a straight face and say that you need a bill of particulars because you don't know what elements the prosecutor plans to prove in order to establish larceny, and (2) the judge believes you, then (3) you should get a bill of particulars. More realistically, this should probably apply to more obscure common law being indicted under a statute. An example of this might be if the prosecution indicted misprision of a felony under the misdemeanor catch-all statute Va Code
§ 18.2-12 (any misdemeanor without a set punishment is a lass one misdemeanor). A typical defense attorney would probably not know the elements of that offense and therefore a bill of particulars would make sense. 

What Should Be Allowed:  Under this allowance of a bill, a defense attorney should only be entitled to a list of elements which the prosecutor plans to prove in order to prove the offense. There would not be a need for any factual/evidentiary disclosure to tell the defendant the elements of the offense he is accused under.

(b) More Than One Offense Under the Statute

 Reason Needed:  Again, this is a common occurrence under Virginia's statutes (I imagine this happens everywhere and particularly in the federal system where a "short" statute only fills two pages and has 14 sections). Take the above grand larceny statute for example. A person can be convicted of a felony if $5+ is taken from a person, $200+ is stolen generally, or a firearm is taken. Suppose a defendant is charged generally with "grand larceny as per the elements of ancient common law and the requirements of Va Code § 18.2-95." The defense could move the court for a bill of particulars to determine which of the three elements the felony statute the prosecution is going to rely upon and he should be entitled to the bill.

What Should Be Allowed:  In this case, a bill of particulars would more accurately be called a "bill of winnowing." The prosecutor should be required to choose which element she intends to go forward under. Again, there would be no need to have any factual/evidentiary disclosures in order to tell the defendant exactly what he is being charged with.

 

(2)  CONSTITUTIONAL ISSUES

In general, Va Code § 19.2-266.2 is a statute stating that requires written defense motions to be filed 7 days before trial and be argued at least three days before trial. Under subsection A it lays out those areas to which this applies:  (i) suppression of evidence on Fourth, Fifth or Sixth Amendments grounds, (ii) dismissal for violation of speedy trial, (iii) dismissal for double jeopardy, or (iv) dismissal because the statute is unconstitutional.  Then, in subsection C. it throws in bills of particulars:

To assist the defense in filing such motions or objections in a timely manner, the circuit court shall, upon motion of the defendant, direct the Commonwealth to file a bill of particulars pursuant to § 19.2-230. The circuit court shall fix the time within which such bill of particulars is to be filed. Upon further motion of the defendant, the circuit court may, upon a showing of good cause, direct the Commonwealth to supplement its bill of particulars. The attorney for the Commonwealth shall certify that the matters stated in the bill of particulars are true and accurate to the best of his knowledge and belief.

Possible Interpretations: There are two ways to interpret that statute. (i) The one which prosecutors would favor is that this section is merely directing trial courts to do what is normally done under § 19.2-230 which might be required to determine whether double jeopardy applies or whether the charge falls under the part of a statute which might be unconstitutional.  (ii) The one which defense attorneys would favor is a mandated requirement of disclosure pertaining to evidentiary matters which might pertain to the gathering of evidence that might violate the 4th, 5th, or 6th Amendment.  Surprisingly, there seems to be little precedential case law on this; the sole mention seems to be in a throw away footnote in Sims v. Commonwealth, 28 Va.App. 611 (1998)(footnote 3):

Appellant contends that Code sec. 19.2-266.2 required the court to order a bill of particulars. However, that statute operates only where the defendant seeks (1) suppression of evidence as violative of search and seizure or self-incrimination protections or (2) dismissal of an indictment "on the ground that a statute upon which it was based is unconstitutional." Appellant has not alleged any grounds to bring this statute into play. His constitutional claims relate only to the non-specificity of the indictment and do not reach the constitutionality of the underlying statutes he was charged with violating.

 While this is clearly dicta, it is the only direction given us and it limits the requirements of this statute to only three occasions: search/seizure issues, self-incrimination issues, and unconstitutionality of a statute. That doesn't make a whole lot of sense, and a trial court interpreting this statute after Sims recognized this and stretched the interpretation to apply to everything listed in § 19.2-266.2.  See Commonwealth v. Kuhne, 80 Va.Cir. 299 (2010). Technically, the trial judge was wrong when he broadened beyond the scope allowed by the Court of Appeals (never mind that the trial judge's interpretation makes more sense).

What Should Be Allowed: Under the dicta of Sims, the bill of particulars would be limited to evidentiary issues that pertain to search and seizure or self incrimination protections. As applied to a statute it would just require laying out the elements as per a normal § 19.2-230 bill of particulars (recall, § 19.2-266.2 does not apply to "unconstitutional as applied" arguments which therefore can and would be raised at trial after the evidence has been presented). However, keep in mind that there is no strong precedent anywhere for this and either of my two offered interpretations above could prevail in the end as well as the one offered by the Circuit Court judge.

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Calling a Juror Back to Testify About the Verdict

Can you call jurors back to testify about the way a decision was made or about how they didn't really agree, but they acquiesced because of pressure from other jurors?

No (at least not in Virginia), unless the juror is going to testify about an influence from outside the evidence provided in court.

Research that I did on this point a couple weeks back:
 

A. Lord Mansfield's Rule (Common Law Rule): 

 No inquiry allowed as to jury deliberations.

Vaise -v- Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785):  The court refused to receive affidavits from two jurors indicating that they had decided on their verdict by tossing a coin to resolve the issue. The court cannot receive an affidavit from a juror as to the nature of the juror’s deliberations.

B. Previous Common Law Rule (no longer in effect since 1785):

Allowed as to (1) misbehavior or (2) partiality.

 Norman v. Benmont Willes, 484, 125 Eng. Rep. 1281 (C.P 1744):  “In cases of this sort where the objection could not appear of record, we always admitted of affidavits-as in respect to a misbehavior of any of the jury, or any declaration made by any of them, either before or after the verdict to show that a jury man was partial."

B. Virginia Rule:

Steptoe v. Flood's Adm'r, 72 Va. 323 (1879):  It is certainly a general rule that affidavits of jurors to impeach their verdict should be rejected, first, because they would tend to defeat their own solemn acts under oath; second, because their admission would open a door to tamper with jurymen after they have given their verdict; and third, because they would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it. 

Clark v. Commonwealth, 135 Va. 490 (1923):  [I]f each juror gave his assent to this verdict, the accused had no right to inquire how or why he arrived at it. The deliberations of the jury and the motives which actuate them in arriving at a verdict are secret and usually even jurors themselves will not be allowed to impeach their verdict by testimony as to secret motives which controlled them, or misunderstanding instructions of the court, the effects of the evidence, the measure of their verdict and the like.

Federal Deposit Ins. Corp. v. Mapp's Ex'r, 184 Va. 970 (1946):  The testimony of jurors concerning their deliberations and proceedings is not admissible. It is not competent for a juror to testify what did or did not influence him.

Fuller v. Commonwealth, 190 Va. 19 (1949):  [A]fter the discharge of the jury a juror will not be heard to impeach the verdict to which he has agreed by saying that he misunderstood the instructions of the court.

Mir Aimal Kasi v. Commonwealth, 256 Va. 407 (1998):  Virginia has been more careful than most states to protect the inviolability and secrecy of jury deliberations, adhering to the general rule that the testimony of jurors should not be received to impeach their verdict, especially on the ground of their own misconduct. Generally, we have limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room.

C. Exceptions to Virginia Rule

(1) Externally Acquired Evidence:

Evans-Smith v. Commonwealth, 5 Va. App. 188 (1987)(Juror consulted an almanac): Generally, the testimony of jurors ought not to be received to impeach their verdict, especially on the ground of their own misconduct. . . . An exception to the general rule limiting post-verdict examination of jurors is recognized when it appears that matters not in evidence may have come to the attention of one or more jurors so as to violate the defendant's constitutional right to be confronted with the witnesses against him.

See also: Harris v. Commonwealth, 13 Va. App. 47 (1991)(Juror, a prison guard, “testified” to fellow jurors about the effects of parole on a sentence from a position of knowledge and authority)

(2) Discussing the Case With a Non-Juror

Caterpillar Tractor Co. v. Hulvey, 233 Va. 77 (1987):  Generally, we have limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room. For example, the rule has been applied to expressions of opinion made by a juror to third persons during trial proceedings. In most cases, misconduct outside the jury room has prejudicially affected the jury's deliberation of the case by injecting facts connected with the case which had not been admitted in evidence. For example, the rule has been applied to an improper jury view and to unauthorized private conversations between jurors and third persons. 

See also:  Jenkins v. Commonwealth, 244 Va. 445 (1992)(adopting same rule in criminal cases)