Actual Powers of the Bar: The Primary Enabling Statute

 

So, I've gone over what the Bar claims its powers and duties are, but the Bar is an agency created by the General Assembly approved by the Governor, and placed in the Supreme Court's demesne. It does things which are executive powers (investigation of attorney misbehavior), It does things that are legislative (making rules cum laws for attorneys). It does things that are judicial (punishing attorneys for rules violations). In other words, it is an agency for regulating and controlling attorneys. As with all administrative agencies, there have to be enabling statutes for any powers it has. 

Powers can be those directly enabled by a statute or those required by inference flowing from a duty assigned. This is the start of the slippery slope as the agency claims more and more power until it is well beyond what could originally have been reasonably read into the enabling statutes. Another possible cause of agency overreach is the vagueness / overbroadness of an enabling statute which basically lays no meaningful parameters so the agency can claim any powers it wants.

With all that in mind, let's see if we can list both the direct and inferred powers of the Virginia State Bar, starting with its primary enabling statute.

§ 54.1-3910 is the statute which creates the Bar as a top down organization which is subject to rules and regulations from the Supreme Court of Virginia and enables it to investigate violations of rules promulgated by the Supreme Court for lawyers and report violations to the court. By inference, it allows the Bar to create three committees: Legal Ethics, Lawyer Advertising and Solicitation, and Unauthorized Practice of Law. It then subjects all lawyers in Virginia to its dominion.

All the committees are given one power by inference: to issue advisory opinions. No other powers are given specifically or through inference. There is also no setting of parameters of the opinions requiring us once again to infer them through the names of the committees what they would be opining about.

[Comment: Under its primary enabling statute the Bar has no power to punish formally or informally any attorney for anything. This is entirely a power of the Supreme Court and if the Bar does not have the power to do it the Supreme Court cannot offload one of its powers on the Bar. As far as it goes, the Bar doesn't have the power to prosecute under the primary enabling statute either. Thus a reported violation would stand on the report.  

Remember, a basic, bedrock tool of statutory interpretation is inclusio unius est exclusio alterius; in other words, if specific a list of things are granted all others are excluded. Thus, if three committees are named all others are disallowed. If there are listed powers/duties for the committees all others are disallowed. HOWEVER, don't get too excited here and start start wringing your hands while you mumble about having the Bar just where you want it (for whatever nefarious reasons you may have for wanting to make our beloved Bar rue the day). There are other statutes scattered around Chapter 39 of Title 54.1 handing other powers to the Bar and we haven't finished looking at them yet. Surely, in the name of all that's good, the Bar's been enabled for all the things it does, all the positions it fills, and all the committees it's formed. We'll keep moving forward to explore further.]

Virginia Criminal Case Law for the Last Year

Me practicing my presentation for the 30th Circuit Bench-Bar. There will be stuttering and trying lines over again, but generally it should give you an idea what the Virginia appellate courts have been up to over the last year - or at least those parts I thought most interesting / helpful / important.

Fixed

The Virginia State Bar: Claimed Duties and Powers

I was thinking about a particular legal issue involving the Bar overstepping its legal and constitutional parameters (inspired by Scott's soliloquy about the ABA trying to get States to repeal free speech via ethics rules). Realizing that I couldn't think of a place in the law that I knew gave a raison d'etre for the Bar, I stared into space and came up with the best purpose I could come up with in a couple moments.

1. To enforce rules that protect both attorneys and their clients from harm while they are engaged in, or preparing for, a legal proceeding or procedure or the possibility of either.

2. To present before the Courts any attorney who, through willful misconduct or gross negligence caused more than de minimis demonstrable harm to a client.

With that as a starting place, I went to the Bar's own website, sure they would have their mission statement well put forth. Instead, I find this:

The mission of the Virginia State Bar is (1) to protect the public, (2) to regulate the legal profession of Virginia, (3) to advance access to legal services, and (4) to assist in improving the legal profession and the judicial system.

 Huh.  (1) True.  (2) Seems overly broad, but generally true.  (3) Partially true; probably mostly not.  (4) Seems an awful lot like self appointed duties; unlikely to find support in enabling statutes.  Of course, not satisfied with that vague explanation the Bar goes further:

(a)  Enforces the rules and regulations that govern lawyer ethical behavior and the unauthorized practice of law;
(b)  Disciplines lawyers who violate the rules;
(c)  Regulates attorneys’ completion of mandatory continuing legal education (MCLE);
(d)  Promotes access to legal services; and
(e)  Advances diversity and inclusion in the legal profession.

 (a) & (b) True. We shouldn't be very proud of this. The Bar should be limited to investigating and reporting to courts. The fact that it star chambers lawyers isn't a good thing. The Bar acts, in many cases as investigator, jury, and sentencing judge. Sure, it can be fought and forced into the light, but if you're a solo practitioner busting your rear to keep your business going [the natural prey of the Bar's investigators] you don't have the time or resources and when you are offered a "private reprimand" that will disappear, unseen by anyone, in a set number of years if nothing further happens you take it. You might even take a "public reprimand" if it will get them to stop wasting your time so you can get back to representing your clients. Or, you could go the Horace Hunter route and spend years fighting the Bar to defend your free speech rights when it is so much easier to take that slap on the wrist so they will quit wasting your time and your clients'. The Bar shouldn't be able to take action unless it has a matter serious enough to take to a court. (c) True. The Bar is the organization that makes sure we get to spend hours in training that most ignore by reading their phone, playing on their computer, or catching up on work. To be fair, the quality of the CLE's isn't really the Bar's fault and you can find useful CLE's out there, but you have to search a bit and be picky. The Bar doesn't particularly care as long as you get your set number of hours.  (d) Partially true. The Bar has some responsibilities toward legal aid and will, after last year's law change, be able to force lawyers to give money to this no matter how much they disagree with being forced into such an association. However, this is a minor, minor part of the Bar's duties.  (e) Somebody please show me an enabling statute. This seems another self appointed duty/power and well outside the Bar's lane. The Bar doesn't determine who becomes a lawyer. It is merely enabled to deal with them once they are. The fact that there aren't enough Hasidic-Ukranian-Americans in the Virginian Bar isn't something the Bar should be worried about. It may be something the education system needs to concern itself with, but not the Bar.

Next Time: Enabling Statutes?

Exploring the Chaste Reputation Statute

Believe it or not, someone actually asked me to do a for real analysis of the chaste reputation statute. I aim to please so here we go.

The Statute:

§ 18.2-417. Slander and libel.

Any person 

[1] who  [a] shall falsely  [i] utter and speak, or  [ii] falsely write and publish,  [b] of and concerning any person of chaste character,  [c] any words  [i] derogatory of such person's character for virtue and chastity, or  [ii] imputing to such person acts not virtuous and chaste, 

OR

[2] who  [a] shall  [i] falsely utter and speak, or  [ii] falsely write and publish,  [b] of and concerning another person,  [c] any words which from their usual construction and common acceptation  [i] are construed as insults and  [ii] tend to violence and breach of the peace

OR 

[3] who  [a] shall use grossly insulting language [b] to any person of  [i] good character or  [ii] reputation

is guilty of a Class 3 misdemeanor.

The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.

Really, what we've got here are three different crimes. The first is about impugning any person's chastity and virtue.  Here the original purpose of the statute comes to the fore when this was meant to apply to women. Any honest reading of the meaning of "chaste and virtuous" cannot fail to understand that this was about punishing someone who put out in the community that a woman sleeps around or, at the very least, has had sex with someone out of wedlock. When the General Assembly changed "woman" to "person" it may have broadened to whom this outdated concept applied, it did not change the concept attached to the "person." To be blunt, this section is about attacking someone's reputation for being a virgin or only having sex within the bounds of matrimony. 

The second crime is saying or publishing something that's an insult AND tends toward violence. At the time this statute was originally written it was probably something like: "You're a cad and a poltroon and I shall be at your doorstep at noon to do something about it." It is kin to assault only it doesn't require an actual threat, merely words which tend in that direction.

The third crime is using really, really insulting language TO someone of good character or reputation. So, you don't have to actually have a good character; you can skate by as long as you have the reputation. Anyway, this reads very much as if it meant "If you are a person of means or status none of the hoi polloi shall sully your ears with brutish insults." However, a fair reading is that anyone with a good reputation - no matter their class - can be the victim under this statute. The "to someone" section seems to indicate that this is probably going to occur in person most of the time. However, if someone were to write, and attempt to cause to be delivered, an obscenity laced letter it would most likely fall under this section as well.

To be honest, this entire statute should be scrapped. The third crime [3] is almost surely unconstitutional as it contains no requirement of possible incitation of violence. The first crime [1] maybe has one part that might be salvageable. [1][c][ii] would be falsely saying someone did an act which involved premarital sex or sex outside of an existing marriage. This smells awfully civil to me, but the General Assembly (and the common law) criminalizes lies in other areas of the law (primarily financial¹) and this part of the statute could be thought to be on the same wavelength. Crime two [2] is the most viable of the three. As a milder form of assault it could survive. In fact, I'd kinda like to see it used and challenged to see how it would fare.

Good luck with the statute folks. If anybody ever uses it or defends somebody who has been charged under it let me know. I'd like to see how it fares.

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¹ An example is larceny by trick wherein the thief lies to get the item by claiming he will return it.

Everybody Now Has a Chaste Reputation

If you've read this blog for a while, you'll remember that I was tickled by the impugning of chastity statute meant to protect womenkind's good names. Back then, I pointed out that as a gender specific statute it was clearly unconstitutional (kind of like the common scold) and bemoaned the fact that nobody cared about the chastity of we poor, trod upon men.

Well, the General Assembly heard my plaintive cries for help and fixed the statute. It now protects every man, woman and child's chaste reputation:

§ 18.2-417: Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any person of chaste character, any words derogatory of such person's character for virtue and chastity, or imputing to such person acts not virtuous and chaste, . . . who shall use grossly insulting language to any person of good character or reputation is guilty of a Class 3 misdemeanor.

I know personally I feel a great oppressive weight lifted from my soul. All those rumors you people keep spreading about me sleeping my way across Ghana, Taiwan, and Columbia are now illegal. You hear that? STOP! For goodness sake, they won't let me back into those countries anymore! You people have to stop this!

The Every Ten Day Bond Hearing Rule

It is a matter of writ in stone belief in our local jail that every ten days you can get a new bond hearing. Everybody believes it except for us skeptical legal types - not that it does us much good. There's a reality which thumps legal theory no matter how much we point at our laws and rules.

The defendant has had a bond hearing. He was denied bond, it was set at a level difficult to pay, or he just doesn't have anyone willing to put up the money. Everyone at the jail tells him he has a right to another hearing in ten days.

He besieges his defense attorney. He sics Mom and girlfriend on defense attorney to start calling 24 hours a day and eventually the defense attorney is faced with the prospect of never answering the phone again or scheduling another bond hearing. Needing the phone to make a living, she files the putatively futile motion.

A day or two later, everyone is in court and everyone knows how the hearing is going to go. The prosecutor is going to stand up and say the magic words "No significant change in circumstances" and ask the motion be dismissed. The judge will say he doesn't know that until after evidence is presented. The defense attorney will put on exactly the same evidence as was put on in the first hearing except the defendant will now swear he's woken up because of the time he's spent in jail and he'll stay on the straight and narrow from this point forward. The prosecutor and defense attorney then rehash the same arguments made in the prior hearing with a few new (and massively unimportant) flourishes thrown in. Finally, the prosecutor says the magic words again: "No significant change in circumstance."

We all know how this ends, right? The judge looks over his bench and says, "You just had a bond hearing 12 days ago. You don't get a new one just because you don't like the result. Your remedy is to appeal this to the Court of Appeals." 

Riiiiiiggghht.

Well, to be honest, it does work that way somewhere between 75-90% of the time. The other 10-25% of the time the defendant's Mom cried more believably this time, or they brought Little Timmy to tell the judge how much he misses his daddy, or the judge over the bond hearing has changed and the new judge has different, more lenient bond standards. Whatever the reason, suddenly defendant has a lower bond - often enough one that has no security attached to it at all.

Defendant has just gotten out of jail because he got his every ten day bond hearing. If he is gone from the jail everybody knows what happened. Heck, he probably got shipped back to the jail to get his stuff and do outprocessing paperwork. People see him getting out and know it was because of his every ten day bond hearing. Nobody remembers that it didn't work for the last eight guys. All they know is that it works (besides, the last eight guys can schedule another every ten day bond hearing and try again).

The myth is spread by the jailhouse lawyers because there is a truth at its core. There is a significant enough success rate that it doesn't matter that it's contrary to law. A defense attorney may tell his client that he's not entitled to a new bond hearing every ten days, but it doesn't matter because the jail residents all know that no matter what the law may say some people have gotten out asserting their every ten day bond hearing right.

And thus, the theoretically legally invalid becomes something more and more attempt because it works for some of them. So, we can say the every ten day bond hearing isn't real and they'll keep on trying it because they know it's worked for some in the past. In a clash of what's on the books versus what's really happening, the reality of the every ten days bond hearing is solid enough that anything we lawyers say goes in one ear and out the other. After all, they know it's worked in the past. Why can't it work for them?

The Model Penal Code Was an Interesting Idea

(1) The MPC is perhaps the last gasp of the failed American dream of a common law. An organization called the American Legal Institute tried to create a common criminal code that could be used across the country by both States and the federal government. Although it had a good deal of momentum in the 1960's and 70's, in the end 13 States and, most importantly, the federal government rejected the MPC in its entirety. Most spectacularly, Idaho adopted the MPC and within two months the Idaho legislature ripped up the new laws and went back to its own criminal laws. In most States which adopted it the legislatures picked and chose which parts they would use and there are few States you can find commonly listed as having adopted it almost entirely; usually I see New York, New Jersey, and Oregon. Even then, flaws in the MPC, such as its failure to deal with drug offenses in any manner, left the most slavishly loyal States on their own in dealing with these crimes. Furthermore, as decades have passed various legislatures have continued to modify their State's version of the MPC¹ independent of each other and the laws of each have moved further away from the common law aspiration behind the MPC.

(2) Times do not seem ripe for another attempt. In part this is because in the modern era the ALI, much like the ABA, has become more and more overtly an advocacy group undertaking efforts to eliminate the death penalty and, most recently, trying to water down sex offender registration (some might say drown). It has gotten to the point that there have been calls for judges to not associate themselves with the organization. To be fair, the ALI's MPC was never not advocating for positions that weren't part of most State's criminal laws. In fact, its imposition of its writers' moral values was present from the beginning. It ignored the moral crimes found in most every State's laws (mostly based on sexual mores of the time which went back legally to 1533) and toughened gun control laws². It never claimed the MPC was a "restatement" like it does for areas of law such as torts.  (a) The MPC's strengths were that it cleaned out the detritus of existing criminal law, which was based largely on a jumble of judicial precedent combined with statutory interventions from the various legislatures, and replaced them with a better organized, more easily accessible code. This same could have been accomplished with a restatement - basically a much distilled version of criminal laws as found in treatises like Corpus Juris Secundum and/or its predecessor.  (b) It was a choice to put forth a set of statutes which its authors saw as morally forward looking. It's not hard to see why legislatures would be drawn by the siren song of (a) even if it came with the baggage of (b) - which many did their best to excise. The modern problem seems to be that the ALI has lost the pragmatism of an organization offering a strong value added prospect to the legislatures while it has leaned into pushing the adoption of its moral positions of the moment.

(3) The ALI's attempt to create one common law across the United States has failed and is further fraying. Moreover, a revised attempt by the ALI to create one common criminal code across the country would almost surely fail. Current conditions aren't nearly the same and, having fallen farther into the pit of morality advocacy, the ALI has lost much of its universal respect. Sure, it's still loved by academics, but its appeal is muted in legislatures. The States interested in cleaning up their criminal law and adopting a code did so back in the 60's and 70's. Once these States adopted codes, the strongest point in the MPC's favor was fulfilled. There's far less incentive to go back in and do another rehash because someone wants a legislature to change laws to conform with their moral perspective once a code has already been adopted that makes criminal law simpler and more pragmatic.³

 (4) Can a nationwide criminal code be developed in the United States? No. Not really. Even assuming you could get the federal government (the big get) and every single one of the 50 States to adopt the exact same code, the very next time the legislatures met they would all come up with new and different laws to add and the fraying would begin again. Could the MPC have been more successful?⁴ Probably. That would have required something more along the lines of a Code Restating Criminal Law which started with federal law, perhaps reorganizing and simplifying it, and then filled in the gaps left from laws which a majority of States either recognized through their statues or case law. 

If this approach had been used instead of the MPC approach, a Code Restating Penal Law (CRPL) would be relevant even in those jurisdictions which had not adopted the Restatement. As things are today, the ALI's effort stands irrelevant in California, Idaho, Maryland, Massachusetts, Michigan, Mississippi, Nevada, North Carolina, Oklahoma, Rhode Island, South Carolina, Vermont, West Virginia, Louisiana, and to federal criminal law (and, in my experience, Virginia although there are consistent claims Virginia has adopted some of it). If the ALI had taken this approach, the fact that South Carolina didn't adopt its code wouldn't mean that the CRPL's commentary and case law developed in CRPL States would be useless. By gambling for all, the ALI excluded itself from some. Whether that was a good or bad approach is a matter of opinion.

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¹  "[W]hen the MPC reform movement conflicted with the tough-on-crime movement, it was, unsurprisingly, the MPC’s reform efforts—the efforts of legal professionals and academics more than politicians—that lost." [unsurprising because we live in a democratic republic, not an oligarchy]

See a more thought through explanation: Can a Model Penal Code Second Save the States from Themselves, page 170 (The Degradation Problem)

²  For instance:

§ 5.06(2):  If a person possesses a firearm or other weapon on or about his person,in a vehicle occupied by him, or otherwise readily available for use, it is presumed that he had the purpose to employ it criminally, unless:(a) the weapon is possessed in the actor's home or place of business;(b) the actor is licensed or otherwise authorized by law to possess such weapon; or (c) the weapon is of a type commonly used in lawful sport.  [no mens rea and assumes licensing] 

³  I've tried to finds a news article or anything else on the internet that shows the adoption of any of the new "revisions" that the ALI is making to the MPC which do not reflect the statutes developed by the various states. There must be some state somewhere doing it. Otherwise the ALI is just putting things out there to show how out of touch and irrelevant it currently is. I just haven't found them. If anyone can point me to an article or paper, I would appreciate it.

 

 ⁴  Yes, I know the MPC has been adopted in 35 to 37 States (depending upon which article I'm reading). This is successful, but the MPC never got over the summit. Some fairly important States rejected it (California, Michigan, North Carolina) and I know at least one other listed as adopting part of the MPC, Virginia, doesn't seem to have very much of it. I know I'm still using common law definitions of trespass, larceny, robbery, etc. derived mostly from judicial sources. The biggest failure was the inability to get it adopted by Congress as federal law which guaranteed semi-failure.

Kisses and Laser Beams: How Slight is a Battery in Virginia?

Pretty slight:

"The slightest touching of another if done in a rude, insolent, or angry manner, constitutes a battery." Kelley v. Commonwealth, 69 Va.App. 617 (2019)(unwanted kiss is a battery). This slight touching does not necessitate physical contact between the two individuals. See Hardy v. Commonwealth, 58 Va. 592, 601 (1867)(Spitting), Adams v. Commonwealth, 33 Va. App. 463 (2000)(laser beam), Gilbert v. Commonwealth, 45 Va.App. 67 (2005 (spitting), & Moore v. Commonwealth, Va.App. no. 0721-17-2 (2018 (U)(spitting). "In Virginia, it is abundantly clear that a perpetrator need not inflict a physical injury to commit a battery." Adams v. Commonwealth, 33 Va. App. 463 (2000). “It is sufficient if it does injury to the victim's mind or feelings.” Kelley.

(Lifted from a brief I wrote a year back or so.) 

Virginia Prosecutors' Ability to Appeal: The Last Antecedent Doctrine

The ability of prosecutors to appeal in Virginia is limited to interlocutory appeals under an enabling statute. Va. Code § 19.2-398. It begins by allowing appeals when a case is dismissed on speedy trial grounds or double jeopardy [subsection A(1)] and further down in the statute it allows the prosecutor to appeal decisions about bond [B], sentences when the judge doesn't follow mandatory requirements [C], and dismissals because a judge has found a statute unconstitutional [E]. All of that is pretty straight forward; the play in the statute is subsection A(2).

Subsection A(2) should simply state "If a trial judge prohibits an item of evidence prior to trial the Commonwealth shall have a right to appeal." Unfortunately, it doesn't. Instead, our General Assembly has saddled us with

An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.

Clever defense attorneys will try to work around the edges here. Most often it comes in the form of a claim that the evidence should be suppressed for violation of due process under the 5th and/or 14th Amendments. Another argument seen on appellate briefs is that all appeals by the prosecutor under this section must fulfill the "prohibiting illegal searches and seizures and protecting rights against self incrimination" portion of the statute. This is fairly self-evidently wrong, but for those of you who can't figure out why, I thought I'd lay out the doctrine and precedents.

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Example Scenario:  

A domestic victim testified in a preliminary hearing against the man who beat her and put her in the hospital [malicious wounding 5-20 years]. The defendant was present and the defense attorney fully cross examined the victim. Before trial, the victim sends a letter to the court telling the judge she is moving to Idaho and she's not coming back to testify at trial because she's scared about threats from the defendant's family. Despite the copious amount of case law stating her prelim testimony can be introduced at trial, the defense moves for its suppression and the trial judge grants the suppression on 6th Amendment "right to confront" grounds. The prosecutor appeals to the Virginia Court of Appeals and the defendant's reply brief only argues one point. He states that the prosecution is barred from having this appeal because it has nothing to do with "prohibiting illegal searches and seizures and protecting rights against self incrimination."

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The Applicable Rule:

The Last Antecedent Doctrine / Rule of the Last Antecedent - "[A] limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26 (2003). This doctrine has been followed since at least 1959 by the U.S. Supreme Court, Federal Trade Commission v. Mandel Brothers, Inc, 359 U.S. 385 (1959), and the Virginia Supreme Court applied it specifically to statutes pertaining to criminal law in 2004. Alger v. Commonwealth, 267 Va. 255 (2004). As recently as 2017 it has been applied to a criminal statute by the Virginia Court of Appeals, which stated "[t]he rule of the last antecedent is the preferred procedure for clarifying whether modifying language is intended to modify all preceding antecedents or only the final one." Coffman v. Commonwealth, 67 Va. App. 163, 168 (2017).

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Applying the Rule:

One of the keys in the use of this rule is locating the disjunctive conjunction (although it seems like it should work the same for inclusive conjunctions). Under precedent and basic grammar rules, “or” is a disjunctive conjunction expressing alternatives. See Merriam-Webster Disjunctive (1)(b) (https://www.merriam-webster.com/dictionary/disjunctive). In the Virginia Supreme Court the last antecedent doctrine was applied in Alger when “or” separated “firearm or stun weapon.” It determined that the language to the right of the “or” was the last antecedent of a modifying phrase which followed allowing possession in a residence. Thus, it determined that a stun weapon could be possessed at a residence by a felon, but not a firearm. Similarly, the U.S. Supreme Court in Mandel Brothers determined that in a list of “a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs” the last antecedent was to the right of the “or” and therefore “who is engaged in dealing commercially in fur products or furs” applied solely to the phrase “any other person.”

There are, of course, two "or"s in the pertinent language of the subsection. One separates the federal 4th, 5th, and 8th Amendments from Article I of the Virginia constitution. One could argue this is the pertinent "or", but the far better fit is the second "or" which separates sections 8 [Rights of the Criminally Charged] & 10 [Banning General Search Warrants] of Virginia's Article I from section 11 [Due Process]. The primary reason the second "or" is the one which should be used is because it is the actual last division setting the last antecedent to its right. Beyond that, "prohibiting illegal searches and seizures and protecting rights against self incrimination" has more application in a due process zone because when in a probation violation hearing the rights of the accused are found under due process protections. Thus, if a judge were to exclude some evidence before a probation violation hearing after finding an unconstitutional search or interrogation that exclusion could be appealed.

Of the two arguments, the primary one is the strongest and should carry the day if the appellate court is in a logical mood. One would have to engage in a fair level of sophistry to bypass the last antecedent rule. The second argument bolsters the primary, but it is far from bulletproof. It's biggest difficulty is that because there is no inclusion of due process in the list of federal amendments which can be appealed the inclusion of section 11, however it is limited, is effectively moot. Attorneys are trained to raise issues under the federal constitution because Virginia's appellate courts have been very strict in their insistence that rights under the Virginia constitution are merely co-extensive with the federal rights. Additionally, a competent defense attorney wouldn't base his argument on section 11 because that would subject a successful motion to suppress to appeal. So, while the modifying information clearly attaches to the last antecedent, section 11, the section 11 language itself is meaningless. This could be used as an excuse to ignore the plain reading and the rule.

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Conclusion:

However you apply the last antecedent doctrine, the federal amendments which a prosecutor is allowed to appeal are not modified by the "prohibiting illegal searches and seizures and protecting rights against self incrimination" language. There are two "or"s between that part of the statute and the modifying language. The modifying language solely applies to Article I section 11. Even if an appellate court were to widen the application of the modifying language it shouldn't be able to get past the applying it only to Article I. Or at least it shouldn't be able to without tying itself into a knot of illogical sophistry. They do this at times (My favorite over the last few years was the 4th Circuit writing 11 pages of smoke and mirrors trying to convince everyone that there isn't a clear understanding of what a habitual drunkard is as opposed to the extremely simple and easily understood "someone who is habitually drunk most or all of the time.")

Anyway, per the statute as written and the doctrine as applied, if a judge prior to trial suppresses evidence upon any 4th, 5th, or 6th Amendment grounds the prosecution has a right to petition for an appeal. Sorry defense attorneys, you're going to have to keep trying to exclude for due process reasons if you want to avoid giving prosecutors any due process.

Korean Courts - Miss Hammurabi Ep. 01

The Second Amendment Shan't be Delayed Until 21

 From Hirschfeld v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 4th Circuit, Case No. 19-2250 (13 July 2021):

 When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is no different.

Plaintiffs seek an injunction and a declaratory judgment that several federal laws and regulations that prevent federally licensed gun dealers from selling handguns to any 18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds possess Second Amendment rights. They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons. We then ask, as our precedent requires, whether the government has met its burden to justify its infringement of those rights under the appropriate level of scrutiny. To justify this restriction, Congress used disproportionate crime rates to craft overinclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing so, Congress focused on purchases from licensed dealers without establishing those dealers as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment. Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status.

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 Yes, that's a published opinion. Interestingly, if service in the militia is key in Virginia § 44-1 makes everyone 16 years old a member of the militia and liable to provide their own weapons when mustered.

Can a Criminal Victim Limit a Prosecutor's Access by Hiring an Attorney?

It's always a concern when your State Bar announces it is going to issue a Commandment Writ in Stone . . . er, Legal Ethics Opinion that might affect you. Right now, the Bar in Virginia is taking comments about a possible new ethics rule (1895) about whether prosecutors can talk to victims of a crime. Let's take a look, shall we?

 The Bar's Question: This opinion request asks whether Rule 4.2 prohibits a prosecutor from contacting a victim in a criminal case when the victim is also a represented plaintiff in a civil case based on the same facts as the criminal case, and when the victim’s civil lawyer represents the victim’s interests in the criminal matter, with a goal of advancing the victim’s interests in the civil case.

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[COMMENT]  That is an incredibly limited question and should only impact a very narrow sliver of cases. It's rare that a victim is suing the person who committed the crime against them. The defendant would either have to be rich unto himself or be acting under authority of another who has significant funds (for instance if the defendant was a fireman/policeman/social worker who broke the law while representing his agency).

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The Bar's Answer: If the victim is represented by an attorney who claims to represent the victim in both a civil case and the criminal case the prosecutor cannot talk to the victim EXCEPT to address issues specifically required in statutes and the Virginia constitution.

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 Why the Bar is Wrong

Things to be considered (in order of primacy): 

(1)  Virginia Code § 18.2-460. Obstructing justice; resisting arrest; fleeing from a law-enforcement officer; penalties.

A. If any person without just cause knowingly obstructs . . . attorney for the Commonwealth [or] witness, . . . in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such . . . attorney for the Commonwealth [or] witness . . . he is guilty of a Class 1 misdemeanor.

(2) Case law clearly requires a prosecutor to maintain control of her case. Counsel hired by the victim cannot direct the case.  In fact, a private prosecutor representing someone with a civil interest in the same circumstance (a) violates Due Process under the Virginia Constitution and (b) requires no showing of prejudice on the defendant's part for reversal of a conviction. Cantrell v. Commonwealth, 229 Va. 387 (1985) & Riner v. Commonwealth, 268 Va. 296 (2004).

(3) Virginia Ethics Rule 4.2:  In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(4) Comment 9 to the above Rule:  Concerns regarding the need to protect uncounselled persons against the wiles of opposing counsel and preserving the attorney-client relationship may . . . be involved where a "third-party" witness furnishes testimony in an investigation or proceeding, and although not a formal party, has decided to retain counsel to receive advice with respect thereto.

 Analysis: Let me be fair and state that as a pure analysis of Rule 4.2 the Bar has a proper, but flawed answer. Ethics rules and opinions cannot exist in a pure state - untouched by the taint of actual law and practical reality. As the Bar recognizes in the very first sentence of its analysis, if the victim is represented merely in a related civil matter, the prosecutor is fully able to communicate with the victim. However, the question is framed so that the attorney represents the victim in both the civil and criminal case. The Bar conducts its analysis from this flawed premise.

The flaw in the Bar's analysis is that the civil lawyer is forbidden from influencing the criminal case in a manner meant to bend it to the desired civil result.  Cantrell & Riner supra. This comes out of case law - not a Rule - and therefore has precedential authority over Rule 4.2. The only possible way the Bar can defend against this would be to say that these cases refer only to private prosecutors, not to an attorney attempting to manipulate the course of the criminal trial by denying the prosecution access to the victim. Remember, in the question presented by the Bar the victim's attorney is acting "with a goal of advancing the victim’s interests in the civil case." In other words, the attorney wants to deny the prosecution access to the victim (her client) because she believes (or fears) that such access will lead to or allow a prosecution strategy damaging to the civil case.

Worse for the attorney, denying the prosecutor access to the witness because it could impact a civil case isn't anywhere near "just cause" and therefore makes the victim's attorney a criminal for obstructing justice. § 18.2-460 is black letter law written in the books. It definitely has precedential authority over Rule 4.2. Just imagine the trial: "Ladies and gentleman of the jury, I didn't let the prosecution have access to my client in the Childsroth murder case because we were going to make a lot of money suing the murderer."

Conclusion:  Effectively, the Bar's proposed ethics opinion would only add an extra step in those almost vanishingly few cases it would apply to. The prosecutor would have to call the victim's attorney to ask to speak to his client. The victim's attorney would by law be required to say "yes."  The Rule accomplishes nothing legally except to create a technicality.

Caveat: Remember, this is not a situation (as presented in the question) were the victim faces actual or possible charges herself. In such a case, the victim's attorney would play a legal and practical role in either protecting his client from incriminating herself or negotiating terms under which his client will cooperate and testify (use immunity, derivative use immunity, etc.). Reading Rule 4.2 and comment 9, this seems to be what the rule is tailored for in criminal cases.

Starting Back In with the 'vid

We've been required to wear masks again this week even if we did the right thing and got our shots. Here are the stats:

New Virginia Criminal Laws 2021

This is my update as given to the local bar. The officers got a different update because they didn't need as much of an update on sentencing issues. When I did this I'd updated several departments and the parts I'd gone over with them are the smooth parts. The parts where I'm really umm umming are the ones I'd not done until this day.

If you want the typed breakdowns then go to kenlammers.com and you can find both the one I did for the officers and the one I did for this presentation to the attorneys. They are different because I did discuss different things with each group.

High Point of the Day

I just heard a defense attorney ask a witness if he had “ever been convicted of a crime involving lying, steating, and chealing?”

CATO: Getting Police Questioning Wrong Through Lack of Context

CATO is a ideologically libertarian think tank which often puts out quite smart think pieces on various topics. Even when I disagree with them, I usually find their pieces well thought out. This was why I was somewhat surprised when I came across this opinion piece about how terrible the police are in the United States because they lie during interrogations and therefore they are mistrusted by the public. 

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The Proposition

Standing alone, it's a very dubious proposition that the general public distrusts police because they lie during the questioning of suspects, so the author attempts to strengthen it by positing that lying in the questioning of a suspect leads to (1) police lying about searches in court and (2) lying to keep each other out of trouble. He doesn't provide any proof of that connection and indirectly points toward collateral factors that are much more likely as causes: (1) the imposition of federal search and seizure standards through Mapp, and (2) the loyalty factor found in any group of people who rely upon one another. I agree, these are factors - particularly the second - which can lead the general public to mistrust law enforcement. They aren't tied into using deception during questioning.

That leaves one item supporting the proposition: they do it better in Europe. They always do it better in Europe. Patriotism may be the last recourse of scoundrels, but Europhilia is the last refuge of those who can't support their argument through American jurisprudence. But, okay, they've set the field. Let's try to play on it.

First of all, let's clear out some of the brambles. The overall rate of crime in Britain and Germany has nothing to do with whether suspects are misled during questioning. There are a myriad of social factors that strongly affect the crime rate that all occur well before anyone ends up at the PD in a room with a detective and a two way mirror.¹ And, now is when we cut away the idea that being deceptive during questioning leads to the distrust of the general public. Telling us that people in Britain and Germany trust officers more than Americans do is a distraction which the author connects to questioning techniques. At core, the author of the CATO article believes a suspect has a basic right not to be lied to. That kind of solid core belief is respectable. However, it doesn't make the connection the author wants magically appear.

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Examining the English Model

Nevertheless, there is one facially solid argument the author has made: the claim that a policy of requiring officers to be honest has resulted in a "high volume of confessions" and fewer false confessions in England. The fact that "high volume" was used to describe the number of confessions would tend to indicate the author didn't have stats which showed better results in England. I went to the article linked to by the author as his proof that England had fewer false confessions, but on a quick read through didn't see that stated unequivocally. I did see the linked article state

Unfortunately, the PEACE model technique . . . needs to become more innovative with regard to challenging the denials of uncooperative suspects. With this in mind, both the Norwegian and the Irish (An Garda Síochána) police have developed their own interview models, which are largely based on the structure and principles of the PEACE model but are more dynamic and flexible in terms of challenging uncooperative interviewees. (p. 706)

 Putting this together with the attached "high volume" statement would tend to indicate they got fewer confessions overall and that the total honesty system fails when it comes up against the uncooperative. As there are fewer confessions overall and system failure without cooperation by the suspect, there are fewer false confessions.

How then do the English get a "high volume of confessions" when they must maintain honesty? Well, they can entirely honestly look at the suspect and say "If you don't talk to us then it will be used against you at trial." Americans seem to operate on the belief that the English have exactly the same set of rights that we do. They don't. Our Supreme Court has interpreted our right to remain silent as nigh unto absolute. Their Parliament has not. Suspects in England don't have to say anything, but that silence will most assuredly be used against them at trial. Here are the pertinent sections from Part III of the Criminal Justice and Public Order Act 1994:

34. If a suspect fails to mention any fact, but uses that fact as part of his defense, the failure can be used against him at trial.

35. A defendant's failure to give evidence at trial can be used against him.

36. If a suspect has evidence on him indicating he had something to do with the crime, but does not explain the presence of the evidence to an officer, the failure to explain can be used against him at trial.

37. If a suspect is found at the scene of a crime, but does not explain his presence to an officer, the failure to explain can be used against him at trial.

How do you not get a high volume of confessions with that big a stick to wave, entirely honestly, at the suspect?²  I'm pretty sure that there are a lot of American officers who would agree to be honest while questioning suspects if they walked into the room with almost a requirement that the suspect explain things to them.³  So, it appears likely that the high volume of confessions in England is due to a very different playing field and that the honesty requirement isn't the prime mover.

I've watched a fair number of police interviews over time. Most start with a short chat that quickly leads into the officer explaining Miranda rights to the suspect. In the last ten years or so in my locale that usually means the officer reading them off a piece of paper, the suspect initialing beside each right and then the suspect signing the bottom of the paper if she waives the rights. The suspect does it almost every time and then starts talking; sometimes she can't even wait that long.⁴  Do police build rapport with suspects? Yes. Despite the CATO author citing rapport as a terrible and deceptive thing we do in the US, it is a major part of the interview process in England as well. After all, the second phase of the PEACE model, Engage and Explain, "is sometimes described as the Rapport stage of the interview." And let's not forget, the suspect is often trying to build rapport herself so she can lead the detective down a primrose path or sell him a sob story or just catch a break. 

PEACE is all about the rapport and in a situation like England's where the suspect basically has to talk to the officer rapport and picking apart inconsistencies is probably enough in many cases. The US system also relies on rapport, but doesn't have a situation where the suspect faces consequences for not saying anything. It's not quite a comparison of apples to oranges. It's more like comparing a Golden Delicious to a Granny Smith. They're both apples, but you wouldn't use them interchangeably in a recipe.

We could change our system to mimic the English: "You have a right to remain silent. Anything you say or do not say can and will be used against you in a court of law." Then we could adopt the PEACE system from the English. Would it be as effective? Apparently not. However, if you take as a first principle, as the CATO author does, that officers must be entirely honest with suspects that might be a sacrifice you're willing to make.

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The Example Given

 Let's look at the example the author gives. Two suspects are put in separate rooms and neither is talking. The officers tell each that the other is singing like a bird in order to get them to talk. Ask yourself if this technique in any way makes the content of the statements of the suspects conform to a preconceived notion of the officers of how the crime occurred. It doesn't. Therefore, should we remove this technique from the officers? Probably not.

We should be concerned if officers are leading a suspect down a path. Didn't you do X? Yes. Then you did Y? Yes. Whenever a questioner asks closed questions, leading a suspect in a certain direction it can be bad. If there's nothing but this sort of questioning that interview is very suspect. Of course, a leading and/or deceptive question may be needed to get things rolling along. Look, we know you killed him, right? Yeah, okay. Just tell me how it went down. Then the suspect fills in the details. An important check in this sort of questioning is the undisclosed fact. If the suspect talks about something which is not told him and not known to those who weren't at the scene then the interview is strong evidence.⁵  The problem here, and I suspect in most false confessions, isn't the deception. It's the susceptibility of the suspect to suggestion and officers who don't use open ended questions when they should either because of poor training or because they aren't getting the answers they want.

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Conclusion

I understand finding the misleading of a suspect during questioning distasteful. In a perfect world robbers, rapists, and serial killers would all confess fully and immediately the moment they were first questioned. Then our police officers would not have to sully themselves with misleading questioning tactics meant to lead to a confession of the act and the CATO author would not be discomforted by reality. Unfortunately, we live in reality. Officers have to do distasteful things because we are choosing the distasteful over the bad or flat-out evil.

Believing that total honesty from officers is a first principle is fine - naive, but fine. However, you must argue its benefits within the American system, not use a comparison with a significantly different system. Explain why it is such a good that it more than compensates for the necessary evil officers now engage in. If you can come up with a solid, practical, American jurisprudence based solution which will provide as good or better results, present it. I'm sure a detective who gets an embezzlement confession without using a single bit of deception will thank you for your efforts. Just please don't ask him to hold his breath while you try to work out that solution.

 

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 ¹  In the US, the idolization of crime and criminals might have something to do with this. We know and glorify our criminals from Billy the Kid through Bonnie and Clyde and on to the Notorious B.I.G. who was so well known that people adopted his nickname for a Supreme Court Justice.

²  My one semester of college German has not sufficiently prepared me to do as indepth a review of German law, so I'm stuck with what Wikipedia says (rely on this at your own risk): Complete silence is unusable, but selective silence (answering only some questions?) can be pointed out in court. Apparently, this is a statutory right, not a constitutional protection. Also, the warning given by police tells a suspect he can remain silent, but also tells him it is his right to tell the officer of evidence in his favor.

³  As an aside, if the purpose of the constitutional protection is to stop things like confessions being beaten out of a suspect, I don't think this would be unconstitutional in the US either. The Brits have simply decided to walk a different path than we have.

⁴  I've had more than one patrol officer complain that "I told the guy he had the right to remain silent so don't talk to me and he did anyway so now I'm in court." 

⁵  I've had that conversation with officers before. "Oh come on John, you're the third detective on this case and it's from twenty-two years back. How can you know this confession is real?" "Because we never told anybody that the robber scattered crayons across the kitchen before he left - not even your office or anybody - and he described his co-defendant doing it." They will hold on to these undisclosed facts like Scrooge McDuck holds on to his money and hide them in Fort Knox if they can.

The Emotional Gambit and Jail

You'll recall that a few years back I tried to copyright the four reasons that no defendant can ever go to jail. BTW, all you defense attorneys out there are behind on your payments for their use; I figure most of you will have to sell your homes to make your payment by now. Anyway, over time I've come to realize that I've left out one other thing used by defendants in their attempts to avoid jail: The Emotional Gambit.

This epiphany came to me while I was watching a Korean show about their judicial/political system (about 25% of Korean shows seem to involve the judicial system) and the senior prosecutor quizzes a junior prosecutor about the things that defendants say which should never sway a prosecutor.

(1) "I'm sorry."

(2) "Please forgive me."

(3) "I repent."

(4) "I'll never do it again."

(5) "This is unfair."

Then he goes on to warn her (6) "The ones who cry are the most dangerous."

Your Honor Viki TV

He's advising her before her first solo interrogation. In Korea prosecutors have more responsibilities than US prosecutors. They are tasked with interviewing suspects brought to them by the police and they can work out deals with suspects and victims which, as best I can tell, conclude the case without ever going to court. And, if the multiple Korean prosecutor television shows are to be believed (because we all know TV never get things about court systems wrong), no defense attorneys are involved at any point in that process.

It's a different world. Still, the advice above is something a US prosecutor should consider. So let's go thru the factors.

 

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REMORSE INDICATORS

Crying is something most professionals in a courtroom will see thru jaundiced eyes. We've all too often seen crying as an attempt to manipulate the outcome of a court proceeding. Perhaps as often, we've seen it as a display of anguish at being caught and the fear of punishment (intermixed with the former purpose). On some rare occasions it even appears to be an actual display of remorse for the act. Even then, it is most often situationally prompted remorse. And before people start yelling at me for being a cynical prosecutor unable to recognize that people can be truly remorseful of their wrongful acts, ask yourselves a question: If the lady wailing away in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room crying because she stole $1,500 worth of electronics from Wal-Mart?

Moving on, "I'm sorry" and "I repent" are more specifically expressed variations of the same thing: showings of remorse and refutation of the illegal act. These are basically subject to the same analysis as crying. Again, the most obvious purpose for the apology or refutation is manipulation of the court. To a lesser extent, it can also be seen as a display of anguish at being caught and the fear of punishment, although unlike crying verbal communications probably involve a greater level of manipulation over simple anguish. Again, betimes it appears that defendants are truly sorry and repent their act, but they still usually appear to be situationally prompted. The question to be applied here is the same for crying: If the lady proclaiming her sorrow and repentance in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room with sorrow and repentance in her heart because she stole $1,500 worth of electronics from Wal-Mart?

 

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BARGAINING

The remaining three are more open attempts by the defendant to negotiate a better consequence. "Please forgive me" is a bald request for non-punishment. The implication of the request for forgiveness is that forgiveness comes with minimal punishment; it is a request to be treated as the adulteress when Jesus said "Let he who is without sin cast the first stone." As we all recall, no one was left to condemn her and Jesus refused to do more than place the woman on terms of good behavior: "Go forth and sin no more." To put this in more legally cognizable contract terms, the defendant is asking the court to gift her with minimal punishment without even offering consideration.

"I'll never do it again" is similar to "please forgive me" with a small variation. When a defendant says this, it is an open attempt to form a contract with the court. As part of this covenant, she offers to "go forth and sin no more" (be of good behavior). If the court accepts her offer she is asking as reciprocal consideration that the court only impose minimal punishment. 

Finally, "this is unfair" doesn't really concern a contract made by the court; instead it's about one enforced by the court. Assuming it's honestly made, it is a statement that the court's punishment violates the defendant's perception of a societal contract. This could be the defendant perceiving or wishing that the societal contract favors her freedom of action over all ("You can't deny me the right to carry a bazooka."). It could be the defendant perceiving or wishing that rights vested with her instead of another party ("I was going to inherit it in a couple years anyway"). It could be the defendant perceiving that the punishment is greater than a rational cost-benefit analysis would allow ("Five years? For this little charge?"). As well, beyond these more rational reasons; there are a number of less coherent "this is unfair" gripes by defendants which basically break down to the defendant expressing her distress at being caught and held to account.

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Of course, it's seldom that any of these six occur without at least some of the others and the big four reasons a person can't go to jail. Most specifically, crying almost never occurs in a vacuum. It's almost always an addition to the other factors and, depending on your judge's proclivities, sometimes a multiplier. Along with the big four, these are all "I did it, but . . ." attempts to sway the outcome.

The most frustrating thing about all of these is that there are certainly people who are truly remorseful and who will never consider undertaking criminal activity again. The problem is that it is nigh unto impossible to separate the wheat from the chaff. Frequent flyers long ago figured out that if they rend their garments and gnash their teeth while wailing about their sorrow for their act they can get a better sentence from Judge X¹. And they do it far better than those who are not accustomed to being in court and are somewhat overwhelmed by it all. Those whom we all know are putting on a show often do so far better than those who mean it.

Beyond the manipulators is a group that is as large and probably larger. These are the people I mentioned above who are situationally remorseful. While they are under the thumb of the court and facing sentencing they mean it. They are never going to do it again and they are extremely sorry that they did. They are going to turn their lives around and they mean it. And, having dealt with these people for years, I believe they mean it at the time. Then they get back out on the street. Months later, they're back in front of the court, once again extremely sorry for their act and swearing to the court with zeal of the converted that they will never do it again. And, I believe they mean it then too. It doesn't mean they won't be back in another few months or years in the same mode again . . . and again . . . and again. Lather, rinse, repeat.²

Finally we get to the truly bone deep repentant defendants. While I don't quite believe these are unicorns, I do believe it is incredibly hard for the judicial system to spot them. These most likely come in two flavors: (1) The one-timer, and (2) the out of proportion offender.

The One Timer is the lady who gets a DUI driving back from the office Christmas Party or the guy who shoplifts a book just to see if he can get away with it. If the offense is petty, this person is probably going to get a slap on the wrist and move on with their life.

The Out of Proportion Offender is the petty thief who stabs someone who jumped him, the lady who shot the woman she caught in bed with her husband, or the boat owner who's been told by the harbormaster eight times to tie his boat to the dock correctly and refused to do it resulting in the boat slamming into someone in a kayak and killing them. Here things are more difficult. The person has done an act with a result so drastic that it cannot be merely borne. A jury may nullify and refuse to convict a lady who shot and killed the woman she found in bed with her husband, but a prosecutor should not countenance the killing of a person unless it occurs upon threat of another's life (see "History" here for self defense in Virginia).

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CONCLUSION

Every so often, there is going to be a person among the masses of defendants who is truly remorseful. Discerning that person is nigh unto impossible. Even when you believe a person is showing actual remorse, experience teaches anyone who has been in the courtroom for any period of time that it is almost certainly situationally prompted remorse and will produce little actual change in the person's behavior once she has returned to her life outside the judicial system. Obviously, it is the defense attorney's job to latch onto whatever real/fake/situational remorse his client shows and present that to the sentencing judge to the best of his ability. It's not as obvious that the prosecutor should always entirely discount a showing of remorse. However, a prosecutor should probably start with a fairly strong presumption against believing expressed remorse unless he can picture in his head the defendant being remorseful and repentant even if she'd never been caught and brought to court.  If he cannot, he should leave it to the judge to determine whether this lone defendant among the many is that rare gem of a truly penitent criminal.

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¹  Hopefully, no one out there who is a legal professional is foolish enough to believe that the frequent flyers don't know the judges just about as well as we do. The FF who wails away in front of Judge X will be stoic and calm in front of Judge Y because it just bounces off Y. Emotional appeal isn't the only thing we see this in. How often do you see décolletage in front of (female, professional, no nonsense) Judge Y as opposed to (old guy, wandering eye) Judge Q? Examples like this abound. Just because you have a piece of paper on your wall stating you can practice law doesn't mean you're the only one who can scope out the judges.

²  In a way, these are the most frustrating people to watch go through the system. You want to believe that if you could just provide these people with well paying, stable jobs they would become vested in society and stay on the straight and narrow. I'm convinced this would work for a fair portion of them, although only God knows what percentage. There's a reason a guy working a $60,000 a year job is less likely to shoplift from WalMart than the guy living off a government check. Of course, the problem is that most of the people who are situationally remorseful are going to go back out into a world with few opportunities to excel and lots of opportunities to fail.