As you'll all recall, a couple years back I staked my claim to the Big 4 reasons that people can't possibly go to jail. By the way, several of you defense attorneys are behind on your payments for the use of my copyrighted/trademarked reasons. I'm sure it's just an oversight.

Anyway, I was talking to another attorney a few days back and he had, independently, developed a chart in which he measured the the probability that a defendant would develop a relationship with God or find a well paying job against the probability that he was going to jail.  He stated that there was an amazing correlation between between the two. I thought this was pretty cool and sat down to plot the Big 4 on the same sort of chart (as I see them where I practice; your mileage may vary).


Illness is an epidemic among those heading to jail.  It's both a reason why a person cannot go to jail and a reason why that person, if she must go to jail, can get occasional vacations (furloughs) from jail so that she can go to the doctor to deal with her problems (and visit home; and get a meal a McDonalds; etc.). Honestly, I think that a fair portion of these people actually have pre-existing medical conditions. However, I cannot help but notice that a rather large percentage were not going out of their way to deal with their medical issues prior to getting charged. In fact, it's amazing how many people have a doctor's appointment scheduled the day after they are scheduled to be sentenced by the judge and how that broken tooth the defendant has had for a year suddenly starts to throb terribly once she's in jail, becomes a health risk, and needs three dental appointment furloughs to fix.

Job is another way to try to stay out as well as a way to mitigate the actual sentence. An impressive number of people get jobs before they come to their sentencing hearing. A not insignificant number will tell the judge that they have a job waiting as soon as the uncertainty caused by this criminal sentencing is over. A smaller number will tell the judge they've got that job interview today or tomorrow for a job they're sure they'll get. The implication is that if the judge locks them up he will cause them to lose their jobs and ruin their and their family's lives. Of course, if the judge gives them jail time then they want work release. Mind you, work release isn't a terrible idea for someone who is not a repeat offender, is convicted of a minor offense, and has a decent job (not just fry-guy at the local Burger Grease Palace).  The problem with work release always turns out to be the guy who got a "job" working for his subcontractor uncle and just goes home every day to watch TV or the ones who think they are clever and slip off to *ahem* "meet" with boyfriend/girlfriend for 30 minutes when they are sure they won't be missed. I don't know how often these things actually happen; all I know is that I've been involved in cases where they happened often enough that these are the first two problems that pop into my mind when I think of work relief.

Family need is always there, but the defendant seems to become acutely aware of it when she is looking at a jail sentence. She didn't think of the family when stealing the TV from Mega~Mart or when she was dealing drugs in front of her kids, but she absolutely has to be there for them now. They cannot make it without her there to support and protect them. This is a mixed bag. Any prosecutor worth his salt is going to doubt the sincerity of the defendant. She has a history of not caring about her family and the way she's acting right now seems more like an attempt to leverage her family for her benefit. On the other hand, defense attorneys will be more likely to believe their clients' sincerity and become upset at the prosecutors' lack of compassion. Of course, caught in the middle of this is the family itself and the very real concern that, even if Jane Smith is 40% of the mother we wish she were, will we harm the children by depriving them of that 40%? In most cases, the family need is raised as an all or nothing issue. Either the defendant stays out to help her family or she goes to jail and the family is harmed. Sometimes, this is used in conjunction with the job attempt at palliation under the rationale that the defendant must continue to provide financial support to her family.

Finding God seems to tie in more often to when defendants are being held in the jail pretrial. Churches send people to the jail to spread the Good Word and with little else to do the defendant goes to services and Bible studies and classes on good Christian behavior and etc. Sometimes defendants come to the sentencing hearing with a stack of completion certificates a couple inches high. While there obviously some trying to manipulate the system, I think the majority of these are sincere. However, experience has also taught me that once these folks are back on the street and hanging around with their buddies on the outside they will fall back into their wicked ways. So, while I'm sure that a lot of us hope that there are true conversions that hold up under testing, I've not seen too many people get out of their sentences thru conversion. However, I've seen lots of pastors and deacons in court fighting for a member of the body as well as his soul.

Forbes ranks colleges and has become enamored with Kentucky. Furthermore, it has spotted the gems of Kentucky Education: Berea & Centre. Berea because it gives those who have little other opportunity the tools to better themselves. Centre because . . . well, because it's Centre.

"Centre is one of the finest schools in the U.S.  Forbes ranks Centre as one of the nation’s top 20 liberal-arts colleges, above such famous Ivy League universities as Columbia, Cornell, or the University of Pennsylvania. Its secret, I think, is an unrelenting, laser-like focus on offering a superior experience for students."

Oh, and they also mention Transy. Not sure why.

Here in Virginia we have larceny, larceny by trick, embezzlement, fraud, concealment (shoplifting), larceny of farm animals, larceny of milk crates, bad checks, &cetera. It's a pain. That's why I love this section of Texas' statute:

Sec. 31.02. CONSOLIDATION OF THEFT OFFENSES. Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

I get choked up just looking at it.

How do I get the Virginia General Assembly to adopt that statute? Please?

Having said yesterday that I wish we would cherry pick the intent section from the Model Penal Code (MPC), let me not leave you with the impression that it is perfect. Specifically, there is a difficulty in that jurors have been shown to have trouble distinguishing between knowing acts and reckless acts. This is not terribly hard to understand.

(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

Under "knowingly", (b)(i) is pretty straight forward; if it is illegal for a felon to knowingly possess a firearm and a felon knows he is possessing a firearm he satisfies that portion of the "knowingly" intent.

However, "knowingly" under (b)(ii) is the big brother of "recklessly." In other words, they are variants of the same thing. In both, the defendant has committed an act which results in a forbidden result. However, in "knowingly" doing the act it results in a "practical certainty" of an illegal result while "recklessly" doing the act only results "a substantial and unjustifiable risk" that the illegal result will occur. These are different degrees of the same thing, but with the modern aversion to actually assigning differential meanings it's doubtful that anyone will say something like "knowingly means the defendant knew to a 99% certainty that the illegal result would occur while recklessly meant he knew there was a 75% probability that the illegal result would occur."

I can understand why this could be confusing to jurors. It's the same reason that all sorts of things are confusing to jurors: because we lawyers over complicate things. I'm not sure why we need the "knowingly" intent. It seems to me that one cannot do, or omit the doing of, something purposefully without knowledge of it. The "knowingly" intent is redundant.

But, you say, what if the defendant knows he is doing something, but does not have the purpose of doing the crime? After all, someone could take Felon's wife hostage and require him to take a pistol and hide it. As well, Suspect going to jail could have been arrested with drugs secreted on her body and have it found after she is in jail and strip searched. In the first case, I would argue that Felon does purposefully possess, but that he has a powerful duress defense. In the second case, Suspect is faced with two possibilities and makes a choice: admit possession and get another charge before arriving at the jail or taking a chance that the drugs won't be found when she gets to jail. Either option is a purposeful act or omission. I am hard pressed to think of any crime where mere knowledge without a purposeful act or omission constitutes a convictable crime.

Thus, I would alter the MPC's intent section so that only Purposeful, Reckless and Negligent intents would constitute crimes. I would also add some language to the "Purposefully" section which would make it clear that both acts and omissions constitute purposeful acts and that doing or failing to do something with a knowledge that it will cause an illegal result is a purposeful act.

Back in the day, the good folks over at the American Legal Institute (ALI) decided that nobody was getting criminal law right. Although in other areas of the law the ALI had issued "Restatements", it wrote its own brand spanking new Model Penal Code (MPC). From the late 60's to the early 80's various States abandoned the common law and adopted large portions of the MPC.  I have seen a quote that claimed as many as 35 States have adopted the MPC, but I am skeptical of this because it listed Virginia as an adopter and Virginia very clearly remained a common law state; you don't cite or quote the MPC here.

In the end, the MPC has had - at best - mixed results. It was used by a number of States as a means to sheer off a lot of dead weight that had built up over the years, but failed to unify criminal law throughout the United States. The federal government probably has the most labyrinthian, byzantine, in need of fixing criminal code in the U.S.; it has never so much as given it the time of day to the MPC. The MPC has also been roundly criticized for not dealing with drug crimes, which has left even the States which adopted the MPC with a jumble of very different drug crimes. Lately, the ALI has chosen to abandon the attempt to write laws in connection with the reality on the ground and politicized the MPC when it voted to remove capital punishment in direct contravention of 2/3 of the States and the federal government. Generally, it begins to look more and more like the MPC's day has come and gone and that any changes to it are not going to be attempts to grapple with the realities of modern criminal law and punishment in an attempt to make them operate as best possible. Instead, it looks like it's headed to some politicized ideal which will never pass a State Legislature.

This is something of a shame. There are definitely parts that I wish we had adopted in Virginia. First and foremost, I wish we had adopted some version of the MPC's intent (mens rea, scienter) section:

Model Penal Code § 2.02. General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined

(a) Purposely.
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

There's more to this section, but this is the most pertinent.

I've seen a lot of articles talking about this as the greatest innovation of the MPC and I tend to believe them. The common law is a disaster for intent in crime. There are general intents and specific intents and willfulness and wantoness and statutes and case law can require different formulations for each crime. Most disturbingly, our Virginia Appellate Courts have decided that the default for criminal statutes is strict liability. The MPC cuts through and corrects all that.

Personally, I don't think the MPC is politically viable in Virginia, but if we could only cherry pick one part of it, I'd want this one. Of course, it would cause a massive rewriting of all the other criminal statutes in Virginia to come in line, but I'd be willing to let some legislator's aide slave away doing that for the greater good of all. I'm sure she would understand and happily pitch in.

Sentencing is where philosophy meets fiscality. The fiscal part is that which is impossible to get around. At least for the States, which cannot just print more money, there will always be scarce resources beyond which they cannot afford to lock more people up and throw away the key or to provide programs to reform those who have broken the law.


The philosophical realm is where the fighting takes place. There are basically two sects. The first views the criminal as someone who should be punished. This view tends to conceptualize the criminal as an individual actor who makes moral choices for which he must be made to suffer consequences. The second views the criminal as someone who should be fixed. This view tends to see criminals as members of a community which has let the criminal down (and thus led him to develop anti-social behavioral characteristics) and which will be damaged by the individual's punishment.

Of course, neither side is entirely correct, but the punishment view has had the most influence over the last thirty years or so. This is in large part because the citizenry understands and approves of the punishment model. Citizens tend to believe in punishment for criminal acts. They understand that a criminal is incapacitated and cannot commit crimes while in prison. They believe that when someone is significantly punished and his buddies/family/neighbors hear about it that it will lesson the probability that the buddies/family/neighbors will commit crime. They are dubious that coddling wrongdoers will cause them to see the error of their ways and seek a life beneficial to society. Politicians, beholden to their constituents, have voted in laws which reflect these views.

Nevertheless, the reform the troubled criminals theme has never gone away completely. This is because, at core, it is the more hopeful way of seeing the world. If only we did X and Y we would fix these men so that they would never break the law again. The problem is that, while it may reflect the better parts of our nature, it doesn't reflect reality. Still, for at least the last decade we have allowed our better natures to allow things like drug courts and DUI courts to come into being. Usually, these reform programs come about as a push for a criminal reform program cloaked under the claims of fiscal responsibility. If it costs $A to put Criminal in jail for a year, a year in drug court costs $B, and $A > $B, then it makes sense to put worthwhile cases in drug court.

However, the push for fiscal responsibility can only carry the rehabilitation movement so far. How far can be seen in the cases Professor Klingele discusses in "The Early Demise of Early Release." States have attempted, mostly for fiscal reasons, to adopt early release programs for inmates who are deemed at low risk to break the law if released. These have been rebuffed as "illegitimate changes in the underlying sentence." In other words, changing the sentence of a convict is a lie to the citizenry.

Nevertheless, Professor Klingele pushes forward with suggestions as to how early release programs can be brought into existence and strengthened. It is a difficult argument to make and Ms. Klingele's valiant attempts swim upstream against a strong current springing from the failure of indeterminate sentencing.


Indeterminate sentencing is the procedure of setting a maximum possible sentence, but not setting a specific sentence. The indeterminate sentencing system with which most people are familiar with is the parole system which held sway in the United States until late in the 20th century. The idea behind parole was a medical treatment model for inmates: with proper treatment they could be returned to society rehabilitated into proper members of society. Eventually, this model came to be seen as a failure and it was swept away in most States by "truth in sentencing" laws. TIS laws were put in place in the majority of States in the latter part of the 20th century. They changed the laws so that a defendant would serve the time he was sentenced to serve instead of whatever fraction of that time he would have done under the parole system. So, instead of getting a sentence of 5 years with the Department of Corrections deciding when to release the inmate at any time after he served 33% of his sentence, the defendant sentenced to 5 years would serve 5 years.

This came about because of a perception that rehabilitation efforts had been failures and that convicts were receiving appropriate punishments, but not being required to actually serve them. Parole embodies the hope that exemplary prisoners can be "fixed" and released to go forth and lead productive lives. However, the public viewed it more as a revolving door on the prison. In reality, the public's view was probably closer to reality. Departments of Correction were not going to be able distinguish between the thousands of offenders they dealt with and offenders got dumped back out on the street as soon as possible, unless they were particularly bad while in prison. This ended with TIS.

TIS was followed by Victims' Rights legislation. This was meant to counter the perception that courts were overly worried about the criminals at the expense of the victims. Victims were to be allowed access to courts and have their experience be taken into account. This type of legislation is clearly an indicator that the citizenry wanted an appropriate punishment model - not a rehabilitative model.

Interspersed with this has been a tendency of legislators to pass mandatory, non-suspendable punishments for certain offenses or multiple convictions of certain offenses. These have been applied to felons possessing firearms, the possession of firearms and drugs at the same time, driving under the influence of alcohol, and three strikes laws. Here is found the trifecta of purposes for incarceration: punishment, incapacitation, and a warning to others who might offend.

Ray Larson, the Commonwealth Attorney in Lexington Kentucky, explains the need for for Kentucky's persistent felon laws:

Last week, I expressed disappointment that Virginia's appellate courts are still letting very strict reliance on rules (colloquially known as "technicalities") keep them from addressing the substance of appeals. In particular, I noted that in Davis v. Commonwealth, NOV11, VaSC No. 102420, in which the appellant cited the error, but said the trial court made it instead of stating that the Court of Appeals had made an error by agreeing with the trial court. As I characterized it, the Supreme Court refused to hear the case because the appellant stated “The trial court was wrong in that . . .” instead of “The Court of Appeals was wrong in not finding that 'the trial court was wrong in that . . .'”

I suggested that the General Assembly pass a statute requiring Virginia's appellate courts to address the substantive issues of an appeal unless the appellant's attorney engaged in "wanton disobedience or extreme negligence" in the filing. Even then I suggested that the appellant not be punished, but that the attorney be removed and the appellant given another appeal with a different attorney.

Within short order, this comment was posted:

Rule 5:17 clearly states:
"An assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken . . . is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed."
I have a hard time understanding why an appellate attorney's failure to either (1) read or (2) understand that requirement does not constitute "wanton disobedience or extreme negligence"? Or to put it another way, should attorneys get a pass for being plain dumb?

Always enjoyed a challenge, so I thought I'd address this one.

First, let's address the "Should an incompetent attorney get away with it?" section of the comment. No, but that misses the point. The appeal is not for the benefit of the attorney. It's for the appellant. It's hard to make a case that it is just and/or moral to deny the appellant the ability to correct a putative trial error because the appellant's attorney makes an error in form that does not cloud the ability of the appellate court to understand the substance of the putative error. If a pound of flesh must be paid, it should come from the attorney - perhaps from the Bar, perhaps from court sanctions - if the error is so grievous that it is clearly "wanton disobedience or extreme negligence."

Second, let's determine whether the error in Davis is such that it is not simply an error, but so serious that it is "wanton disobedience or extreme negligence." To begin with, let's address the Supreme Court Rule 5:17. Here's the rule (post continues on the other side of massive rule):

Rule 5:17. Petition for Appeal


(a) When the Petition Must be Filed. --Unless otherwise provided by rule or statute, in every case in which the appellate jurisdiction of this Court is invoked, a petition for appeal must be filed with the clerk of this Court within the following time periods:

(1) in the case of an appeal direct from a trial court, not more than three months after entry of the order appealed from; or

(2) in the case of an appeal from the Court of Appeals, within 30 days after entry of the judgment appealed from or a denial of a timely petition for rehearing.

(b) Who Must Receive a Copy of the Petition. --When the petition for appeal is filed with the clerk of this Court, a copy of the petition shall be served on opposing counsel.

(c) What the Petition Must Contain. --A petition for appeal must contain the following:

(1) Assignments of Error. Under a heading entitled "Assignments of Error," the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error.

(i) Effect of Failure to Assign Error or Use Separate Heading. Only assignments of error assigned in the petition for appeal will be noticed by this Court. If the petition for appeal does not contain assignments of error, or if the assignments of error are not set forth under a separate heading as provided in subparagraph (c)(1) of this Rule, the petition shall be dismissed.

(ii) Nature of Assignments of Error in Appeals from the Court of Appeals. When appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to this Court.

(iii) Insufficient Assignments of Error. An assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.

(2) Required Statements When the Appeal is from the Court of Appeals.

When appeal is taken from a judgment of the Court of Appeals in a case in which judgment is made final under Code § 17.1-410, the petition for appeal shall contain a statement setting forth in what respect the decision of the Court of Appeals involves the following:

(i) a substantial constitutional question as a determinative issue, or

(ii) matters of significant precedential value.

If the petition for appeal does not contain such a statement, the appeal will be dismissed.

(3) Table of Contents and Table of Authorities. A table of contents and table of authorities with cases alphabetically arranged. Citations of all authorities shall include the year thereof.

(4) Nature of the Case and Material Proceedings Below. A brief statement of the nature of the case and of the material proceedings in the trial court or commission in which the case originated. This statement shall omit references to any paper filed or action taken that does not relate to the assignments of error.

(5) Statement of Facts. A clear and concise statement of the facts that relate to the assignments of error, with references to the pages of the record, transcript, or written statement of facts. Any quotation from the record should be brief. When the facts are in dispute, the petition shall so state. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellant's version of the facts.

(6) Authorities and Argument. With respect to each assignment of error, the standard of review and the argument -- including principles of law and the authorities -- shall be stated in one place and not scattered through the petition. At the option of counsel, the argument may be preceded by a short summary.

(7) Conclusion. A short conclusion stating the precise relief sought.

(d) Filing Fee Required With the Petition. --When it is filed, the petition for appeal must be accompanied by a check or money order payable to the "Clerk of the Supreme Court of Virginia" for the amount required by statute. The clerk of this Court may file a petition for appeal that is not accompanied by such fee if the fee is received by the clerk within 10 days of the date the petition for appeal is filed. If the fee is not received within such time, the petition for appeal shall be dismissed.

(e) Number of Copies to File. --Seven copies of the petition shall be filed with the clerk of this Court.

(f) Length. --Except by leave of a Justice of this Court, a petition shall not exceed the longer of 35 pages or 6,125 words. The page or word limit does not include the cover page, table of contents, table of authorities, and certificate.

(g) Use of a Single Petition in Separate Cases. --Whenever two or more cases were tried together in the court or commission below, one petition for appeal may be used to bring all such cases before this Court even though the cases were not consolidated below by formal order.

(h) Procedure for an Anders appeal. --If counsel for appellant finds appellant's appeal to be without merit, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Brown v. Warden of Virginia State Penitentiary, 238 Va. 551, 385 S.E.2d 587 (1989). In compliance therewith, counsel is required to file (1) a petition for appeal which refers to anything in the record which might arguably support the appeal and which demonstrates to this Court counsel's conscientious examination of the merits of the appeal; (2) a motion for leave to withdraw as counsel; and (3) a motion for an extension of time to allow the appellant to file a supplemental petition for appeal. The petition for appeal and the motion for leave to withdraw as counsel should specifically cite to Anders. All three pleadings must be served on opposing counsel and upon the client and must contain a certificate providing evidence of such service. This Court will rule upon the motion for extension of time upon its receipt, but will not rule on the motion to withdraw until this Court considers the case in its entirety, including any supplemental petition for appeal that may be filed.

(i) What the Certificate Must Contain. --The appellant shall include within the petition for appeal a certificate stating:

(1) the names of all appellants and appellees, the name, Virginia State Bar number, mailing address, telephone number (including any applicable extension), facsimile number (if any), and e-mail address (if any) of counsel for each party, and the mailing address, telephone number (including any applicable extension), facsimile number (if any), and e-mail address (if any) of any party not represented by counsel;

(2) that a copy of the petition for appeal has been mailed or delivered on the date stated therein to all opposing counsel and all parties not represented by counsel;

(3) if a word count is used, the number of words (headings, footnotes, and quotations count towards the word limitation; the cover page, table of contents, table of authorities, and certificate do not count towards the word count);

(4) in a criminal case or habeas corpus appeal, a statement whether counsel for defendant has been appointed or privately retained; and

(5) whether the appellant desires to state orally to a panel of this Court the reasons why the petition for appeal should be granted, and, if so, whether in person or by conference telephone call.

(j) Oral Argument.

(1) Right to Oral Argument. The appellant shall be entitled to state orally, in person or by telephone conference call, to a panel of this Court the reasons why the petition for appeal should be granted. The appellee shall not be entitled to oral argument, whether in person or by telephone conference call. Any lawyer not licensed in Virginia who seeks to appear pro hac vice to present oral argument to the Court must comply with the requirements of Rule 1A:4.

(2) Waiver of Right to Oral Argument. The appellant may waive the right to oral argument on the petition for appeal before a panel by notifying the clerk of this Court and opposing counsel in writing, or by filing a reply brief.

(3) No Oral Argument on Pro Se Inmate's Petition. If an appellant is not represented by counsel and is incarcerated, the petition for appeal may be considered by this Court without oral argument.

(4) Notice of Oral Argument. If the appellant has requested oral argument, notice of the date and time of such argument shall be provided to counsel for the appellant or to any pro se appellant. If requested in writing, notice of the oral argument shall also be provided to counsel for the appellee or any pro se appellee.

I made it the smallest font I could because it takes up most of this post and I wanted you to see how big the Rule is and how many hoops the appellant has to jump through in order to get past the form requirements and have the substance of the case heard. The only sections addressed by the Virginia Supreme Court in Davis are the ones that I left regular size. Presumably, every single other of the nine million form requirements was met.

[1]  Per 5:17(c)(1)(ii) the error which the appellant must "relate" to the assignment of error and actions taken by the Court of Appeals and per 5:17(c)(1)(iii) "an assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken" will be dismissed. It is not hard to read these sub-rules so that you would think assigning error to the actions of the trial court, which by their very nature "relate" to the assignments of errors and actions taken in the Court of Appeals. It's obviously not the way that the Supreme Court interprets the language, but a simple reading of it could lead someone into error.


[2]  Per the Davis case itself, 5:17(c)(1)(iii) was added to Rule 5:17 on 01 July 2010. That's pretty new in a legal world which is resistant to change. As we all know, the Rule Book from last year is sitting on the shelf. The "How to Do Appeals Correctly in Virginia" book that somebody got at a CLE in March 2011 gets used. The form which the attorney has perfected and kept on his computer (to make sure he doesn't make errors) only gets used every year or two when the attorney does a rare appeal. These are all common problems which can cause mistakes to pop up.


[3]  Appeals which involve constitutional questions, legal matters, and mixed questions of law and fact are addressed "de novo" by the Supreme Court. In appeals which involve findings of fact the Supreme Court is extremely deferential to the finder of fact (the trial judge). There is an argument that when the Supreme Court takes an appeal from a case that has gone through the Court of Appeals the Court of Appeals' opinion is rendered meaningless and thus the errors assigned make more sense if they address "the findings or rulings in the trial court."


Now, before everybody starts telling me how wrong I am, I am not saying that this correct.. I am saying that, keeping the above in mind, this is an indication that what happened in Davis is error due to simple negligence, not "wanton disobedience or extreme negligence."


All I want is for cases to have the substance of appeals to be more important than the form. Of course, I also want to win the lottery, lose 30 pounds, and bowl a 250. Not sure any of these things are going to happen.

A friend of mine just got sworn in as Commonwealth Attorney for Dickenson County, Virginia.


Congratulations Josh Newberry, The new Commonwealth Attorney for Dickenson County.

And his Assistant Commonwealth Attorney, Gerald Gray.

Federal Cases on Pat Downs & Searches

I'm walking down the hall between courtrooms when a woman and man stop right beside me.

Woman: You the prosecutor?

Me: I'm one of them.

Woman: You John?

Me: No, I'm Ken.

Man: You the one who prosecutes in general district court?

Me: No, I don't usually prosecute misdemeanors, I prosecute felonies.

I kid you not, the guy jumped back two inches and the woman turned and immediately walked away from me.

Okay, so I've indicted your client for 3 counts of burglary. I also know, and have disclosed to you, that the police suspect that he was involved in a dozen more, but are not now (and probably never will be) able to prove his involvement. I'm telling you that his guidelines will probably call for a sentence between 3 to 6 years. Yoiu are trying to talk me into a low-ball offer. You should not say to me

"He's a thug. Putting him in prison won't solve that whether you send him there for 6 months or 6 years."

You must understand that my knee jerk reaction is going to be "Well, then I'll go for the 6 years (or more)."

I understand you're trying to make an argument that he won't be reformed in jail and maybe you have alternatives X, Y, & Z in mind that you're going to try to sell me on next, but you've already set my state of mind and there's a high probability that you've scuttled the rest of your argument.

BUT, but, you say, I've heard well respected, long-time practitioner John Smith Esq. say the same things to you, Mr. Prosecutor, and it didn't seem to affect anything.

Well, yes he does say things like that to me. He knows when he can say it and when he cannot. He knows that the defendant, Mike Greene, has been in front of the courts 27 times in the last 5 years and that my office knows him and isn't ever going to offer him a sweet deal. Mr. Smith Esq. is just recognizing a reality and establishing his credibility with me and my office. It doesn't mean for a second that he won't fight tooth and nail for the guy in the courtroom and he definitely isn't making that statement in order to get me to lower my offer.  It's more like a recognition and notice that one way or another, there's not going to be a mutually satisfactory ending to this case.

If you are a new practitioner, you need to stay away from this. Get a couple or three years under your belt. Establish your creds as someone who gets his clients the best deal he can and who tries the cases that need to be tried. Then maybe you can come into my office and engage in this kind of more sophisticated dealing with the prosecutor.  Maybe . . .

Apparently, the federal jail in Miami is overrun with strippers who are being hired by law firms and sent to the jail as "legal assistants."

Y'know, back in my old days of doing criminal defense, I must admit that it never crossed my mind to use my law office to provide that sort of service for my incarcerated clients. Heck, if I had been that creative I could have tripled my client base. Sadly, I proved not to be so innovative.

Via LawofCriminalDefense

I'm what I've heard a lot of people around here call a “Cradle Catholic.” That's 45 years of attending Mass. I was born late enough that I missed most of the major pains when the Church decided to switch to the vernacular from Latin. However, I've seen a number of changes to the Mass over the years. Some were official. When I was a year or so past my First Communion the Church changed from parishioners kneeling in a row in front of the altar and having the priest administer the Host directly to the tongue to the parishioners standing in line and having the priest pass the Host to the parishioner's hands so the parishioner could put it in his own mouth. The institution of altar boys has disappeared and with it went the ringing of the bell when the bread transubstantiated into the Body and the wine into the Blood (I think this is a shame as it marked the important moment of mass and added an element of solemnity and majesty).

Additionally, I have seen any number of changes which have been either semi-official or undertaken by parishioners. We hold hands with the people standing next to us when we say the Our Father. The older minute of silence to remember those for whom we wish to pray has changed to asking for whom we have prayers and parishioners announcing names and reasons to pray for certain individuals. When I was young the only person I remember crossing his forehead, lips, and heart before the priest read the Gospel was the priest (asking Christ to be in his mind, on his lips and in his heart). Now everybody in the church does it. And we appear to have co-opted that most Protestant of Protestant songs “Amazing Grace.” It's strange hearing a song written by an Episcopalian Preacher which was the theme of the Second Great Awakening (which strongly established the Methodist and Baptist denominations in the U.S.) being played once or twice a month at the beginning or end of a Catholic Mass.

Yesterday, the Church introduced the new English translation of the Roman Missal. Priests everywhere led their churches through new versions of the prayers that many of them had been saying their entire lives (including me). We all stumbled as we would say prayers which were almost instinctual, but aren't the form of the new translation.

The one which caught pretty much everyone at least once during the Mass was “And with your spirit.” Several times during Mass the priest says “The Lord be with you.” Ever since the first translation into English the congregation has answered “And also with you.” It's a knee jerk reaction by now. Yesterday, that answer changed to “And with your spirit.” This is a direct, and much better, translation of the Latin “Et cum spiritu tuo.” This translation obviously corrects a failure in the original translation, but it was also the one which tripped people up the most.

The rest of the translations are a mixed bag. If you've ever done any serious translation work, you know there are those who tend toward simplicity of understanding and those who cleave to the idea that translations must be as true as possible to the original even if it means adding unecessary prepositions and conjunctions¹ and using words which are almost never used in the receiving language. The original English translation was a translation which valued simplicity. The new translation values accuracy.

The Penitential Act

OLD

I confess to almighty God, and to you, my brothers and sisters,
that I have sinned through my own fault,
in my thoughts and in my words,
in what I have done, and in what I have failed to do;
and I ask blessed Mary, ever virgin, all the Angels and Saints, and you, my brothers and sisters, to pray for me to the Lord, our God.

NEW

I confess to almighty God and to you, my brothers and sisters,
that I have greatly sinned,
in my thoughts and in my words,
in what I have done and in what I have failed to do,
through my fault, through my fault, through my most grievous fault;
therefore I ask blessed Mary ever-Virgin, all the Angels and Saints, and you, my brothers and sisters, to pray for me to the Lord our God.

This translation does a much better job of emphasizing the continuing nature of willful, sinful behavior on the part of man. I think the original may be seen as a reflection of the time when it was translated. It is an accurate, but simple translation. The new translation brings home the nature of the failing much better.

More interesting is the new translation of the Nicene Creed. I don't have time to get into that this morning and this is a busy week, so look for a discussion of that next Saturday or Sunday.


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¹ Prepositions and conjunctions are always a place where translators will vary because they vary in shades of meaning and use from language to language such that they often don't have exact translations and can be translated as a couple different words or even just as a comma.

Lots of fussing about UC Davis, just like there was meant to be.

Here's the tactic: Find a public location which you know police will be forced to clear, make sure others are around to take pictures/video, interlock in a way to make it very difficult for police to move you, and wait.

It works. There is absolutely no way for the police to look good when they clear the area as they have been ordered to. Tons of videos show up on the internet.

Police are being ordered to clean out the various "Occupy" camps. Nothing too surprising there. Those among the "Occupy"ers who are dedicated or professional protesters or among the group of people who look at it as a right of passage to get arrested by the police while in college have resisted. Nothing surprising there. Videos are all over the internet and news.

Yawn.

Here's an AP video and an Al-Jazeera vid. According to the Al-Jazeera, the police were cleaning out a tent city and this group of kids decided to engage in passive resistance. The AP shows more of the occurrence than anything else I found. Note the police ordering the kids to "move." Note the kids on the sidelines screaming at the resisters to "not move." Note the police trying to physically separate the kids (unsuccesfully).  Note the officers being extremely obvious about their plan to use pepper spray. Note the yells "protect yourself" and "close your eyes." note the kids on the ground actually taking steps to protect themselves so they won't get a face full of spray (hoods and collars up, heads down).





And here's a video which starts even earlier, in which the police give clear warning that they were going to use spray before doing it.


In the end, the police cleared the sidewalk and the protesters got their moment of glory for standing up to the cops. They also got something to put out there to justify themselves.

This is not Kent State. This is a pre-scripted play.