Blogging Criminally For Over Ten Years
8/31/2007
Naked Hula Beer Theft
8/31/2007
Can't Pay for that Lap Dance . . .
8/31/2007
Is Sex Part of Faith Healing?
8/31/2007
Guatemala: Politicians: We'll be tough on crime!
8/31/2007
A Lesson for Officers
8/31/2007
Trooper in Pa. Charged with Rape
As a side note, guys, I don't care how much she says it turns her on, those bites have come back to haunt more than one person. Might want to think twice about it. 'Course, many a guy might not be thinking at all at that point . . .
8/31/2007
Pedophile and "Evil"
8/31/2007
Copper Thief Combusts
8/31/2007
4th: Letters
8/31/2007
What Other Defense Can You Try?
Via iP
8/31/2007
Wales, Coalfields, and Heroin
8/30/2007
Is the California Pot Rebellion Faltering?
8/30/2007
It take a special kind of ice-heartedness . . .
8/30/2007
Officer, I was trying to Return the Pellet Gun
8/30/2007
20+ Years Later a Djudge Decides the Confessions were Bad
8/30/2007
Copper Theft
8/30/2007
Make Date Rape Drugs . . .
8/30/2007
Chicago: Da' Outfit
8/30/2007
Attempt to kidnap the Dead
8/30/2007
Gotta Admit, This is Different . . .
8/30/2007
An Afghan Opium Market
8/30/2007
A Call for Tighter Reins on Cayman Banks
8/30/2007
UK: A Call for Less Imprisonment
8/30/2007
UK: Prison Guards Return to Work
8/30/2007
What does it say about your church . . .
8/30/2007
Cocaine Use Trends
8/30/2007
How Does Media Attention Effect Kidnappings?
8/30/2007
191 Charges Dropped . . .
8/30/2007
India: Prove He Deserves Bail
8/30/2007
What part of the Big Sign Outside the Detention Facility Did They Not Understand?
Three girls, who were visiting a detention facility in order to avoid going to court for trespassing, were strip searched. It strikes me that the detention center might very well be within its rights in the search. However, when it made the visitors don dirty prison garb it probably crossed the line.
8/30/2007
Canada: Good to Know
8/30/2007
If You Don't Come to Court to Represent Your Client
8/30/2007
Going to Prison for a Crime He Didn't Do - ON PURPOSE
8/30/2007
Anonymous Thief Websites
8/30/2007
Catch a Thief
Everybody needs to write Home Depot about how stupid that is.
8/30/2007
An Honest Thief and a Lesson Learned
8/30/2007
New Zealand: Protest Against Prior Rape Acquitals . . .
8/30/2007
Stolen Clothes?
8/30/2007
Trooper Convicted of Not Reporting Child Molestation
8/30/2007
No Scapegoat Defense in India
Note also - no double jeopardy protections.
8/30/2007
Thank Goodness I Didn't Serve in the Russian Army
8/30/2007
Your Big Brother, Mr. FBI, is Listening
8/30/2007
You Might Get Caught . . .
8/30/2007
Ted "Tubes" Stevens
8/30/2007
Leon Strikes Again
8/30/2007
Are Prosecutions up . . .
8/30/2007
New Zealand: A 5 Year Old Can't Trespass
What, then, are we to do about the lolipop bandit?
8/29/2007
Another Day With Lotsa Posts
8/29/2007
The UK, Prison Guards, and a Secret Strike
8/29/2007
Rapists Get Treated Different in New Zealand
8/29/2007
Yeah, sure, Mairjuana . . .
8/29/2007
Homer was right: Americans will never embrace soccer
8/29/2007
Feds Find NY Statute Unconstitutional
8/29/2007
Defense Counsel Isn't Responsible
8/29/2007
Prosecutorial Discretion
I could discrete that all fines that get charged in my courtroom go into my checking account.
Whatdoyamean, it doesn't work that way?
8/29/2007
Texas Death Sentence Carried Out
8/29/2007
New Blog
8/29/2007
When people move past their addictions . . .
8/29/2007
Text Message Tip Line
8/29/2007
7-11 and the lottery quick switch
8/29/2007
You know the NRA is feeling all warm and fuzzy about this
8/29/2007
Senator Soliciting . . .
8/29/2007
He Burnt Burning Man
Does something that is made to be destroyed have value such that a person can be charged with destruction of property (or vandalism, as some jurisdictions call it).
8/29/2007
Mark's Feeling the Juror's Luv
8/29/2007
Let me not be a journalist in Russia
8/29/2007
Japanese Thieves Haven't Figured It Out Yet
8/29/2007
The Ongoing Crawford Battle
8/29/2007
Federal Court: Who gives a *%^&$ about State law?
8/29/2007
Hazing Not Administrators' Fault
8/29/2007
18 Years Later - DNA Clears a Prisoner
8/29/2007
Windy is found by his prosecutrix
8/29/2007
Vacation for Murder
8/29/2007
Another Dog Case: Alert on Car - Search Person
8/29/2007
Can you show up at the prison Tuesday? Please?
8/29/2007
One shot . . .
8/29/2007
When Prisoners Get Treatment Should They be Read Miranda?
8/29/2007
The same yellow sweat shirt at each robbery?
8/29/2007
Lawrence is feeling sorry for DUI prosecutors
8/29/2007
End of Career for Abu Gharib Officer
8/29/2007
Never Get Busted
8/29/2007
Federal Sentencing Guidelines and Policy Disagreements
8/28/2007
Defining Reasonable Doubt - Round 2
Even if this was the person you loved most in the world, you would know in your heart of hearts that they were guilty and that no other explanation was possible.Well, if I were still a defense attorney I'd love that instruction. As a prosecutor - not so much. As I read this, it changes the standard to beyond any doubt, not beyond a reasonable doubt. In the second clause of the sentence this could be fixed by adding "reasonable" between other and explanation (although this makes the explanation somewhat circular).
The first clause strikes me as raising the defendant too high in the eyes of the jurors. A juror should start from an objective point of view. If no evidence is presented the presumption of innocence is a default in the courtroom which would require a finding of not guilty. However, the jurors should start out not favoring either side and input and/or subtract evidence until it either does or does not reach the level of proof beyond a reasonable doubt. Nobody starts out neutral with a family member. In fact, experience teaches that often loved ones cannot believe that their brother, son, daughter, husband, etc. is guilty no matter how overwhelming the evidence.
If we went back to using a positive definition of reasonable doubt I think the two argued over in the prior note would be okay:
an abiding conviction of the truth of the chargeAlthough, I must admit to some trepidation over how a jury might handle "moral certainty."
or
an abiding conviction to a moral certainty of the guilt of the accused
In the end, I think that the way Virginia handles reasonable doubt, by announcing to the jury what it is not and allowing the jurors to decide exactly what it is, works about as well as could be expected and I doubt the jury worries as much about all the legal technicalities we lawyers argue about. They know it's supposed to be a high standard in order to convict someone, no matter how we word it.
8/28/2007
Off Point: The LA County Fair
I know I got this from another blog, but lost track. If anybody wants to take credit for the lost work time spent watching the videos feel free to take credit in the comments.
8/28/2007
Arrrrgg!!
Anyway, it's not and I'm not sure why. If I replace the format with one of Blogger's awful looking generics it works, so I'm pretty sure it's something in the brew of half understood html I use to make this thing work, but I can't for the life of me figure it out. Hopefully, I'll have time to look this weekend. Until then apologies to anyone who actually tries to read this thru rss.
8/27/2007
More on the Contempt Sanctioned PD and My Opinion
Here we find out that there were two witnesses in court for the case.
I've only seen one article which supports the judge, written by a man who tells us he's never set foot in a courtroom:
[L]et me hasten to disabuse you of that sympathy by informing you that public defenders (many of whom are actually third-year law students) are presented with far more serious cases, under similar time constraints, every day. And, moreover, they invariably provide their clients wholly-competent representation.John, at Law of Criminal Defense, is unimpressed.
More importantly, however, if every public defender needed more than 24 hours to prepare for a misdemeanor assault case, the wheels of the US criminal justice system would become hopelessly clogged.
My Opinion:
Yes, some assault and battery cases can be handled in less than a day, or less than 2 hours or (assuming a competent, experienced defense attorney) in less than 20 minutes. That may even be the majority of assault and battery cases. Any defense attorney who has done indigent defense will have handled more than a couple cases wherein the defendant didn't bother to contact him for the two months he was assigned before trial and the attorney has had to handle the case on the fly the morning of trial. However, there are also cases which need serious investigation, subpoenaing witnesses, interviewing the officers, and negotiating with the prosecutor.
The thing is, the judge can't sort out which case is which from where he's sitting on the bench. I'd be more sympathetic to the judge if he had continued the case and nothing was done which couldn't have been done on the day originally set (no defense witnesses, no physical evidence, when asked prosecutor says no prior negotiation) and then he found the defense counsel in contempt. I would be especially sympathetic to the judge if there was a pattern of doing this, particularly when the prosecution had it's witnesses in court (the thought being that it might be a roll of the dice to see if the prosecution can get the witnesses to court more than once). However, the judge did not handle the matter in this manner. Additionally, if this is actually a policy in place in the PD office and the PD in the courtroom is doing what the guy who can fire him has set down as carved in stone policy, the person who should be found in contempt is the person who is responsible for the policy - that's the head PD, not the guy in court.
Now, that being said, let me go further and say that I find some of the things I've read make me suspicious of the PD and his office as well. The thing I keep reading all over the place about him not asking for a continuance. Some sources seem to intimate that he didn't talk to the prosecutor or do anything to see if he could prep the case. I don't know what the PD did or did not do. However, I find it interesting that everybody reports that he "refused to announce ready" rather than made a motion to continue. The effect is the same, but if you announce "not ready" to a judge who is determined to go forward it's much more theatrical and in your face. It makes the story so much more newsworthy and, by some miracle, a member of the Fourth Estate happened to be there in the afternoon after the judge had continued the case for a couple hours for the defense to prepare itself. One might even think that the PD was purposefully acting in a manner meant to trigger this behavior in the judge in front of the reporter.
This is obviously part of an ongoing conflict between the judge and the PD's office. There's no love lost here and, from what I can tell, it doesn't look like either has clean hands.
8/27/2007
ABA Hits
Thanks guys.
And remember, now that I've said written about the possibility of the ABA saying bad things about me it's now a copyrighted idea and if (in the ultimate proof that God has a sense of humor) I ever get nominated for a federal judicial position it would be a violation of my copyright to say anything about me not being qualified.
8/26/2007
Texas v. Europe
via Instapundit
8/26/2007
Those called before a federal grand jury have a right to read transcripts of their own testimony
via White Collar Crime Prof
8/26/2007
Make there be some speed bump against Bar complaints
Bar complaints, in my experience, mostly seemed to come from a thought that if the lawyer can be burnt the defendant will get another shot. They seemed to start with people who got over 2 years and were almost a certainty when I had a client who got over 5 years. If there were a speed bump, like a $50 fee, perhaps they would file the habeas which they really want instead.
8/26/2007
The Vatican Speaks on the Death Penalty
via Mirror of Justice
8/26/2007
California: 82 minutes = 4 days
Friday 5:41 P.M. "Honey, it's your boss on the phone."
"Thanks. Hey John, what's up? You want me to come in to work? But I just got home! What do you mean this is California and 41 minutes is actually 2 days? The court says so? Okay, it'll take me 30 minutes to get there, so I'll see you after lunch tomorrow."
8/26/2007
Escape from Prison and Try to Hide Behind the 4th Amendment
8/26/2007
Three Weeks Later is Not Exigent
8/24/2007
Here We Go Again!
8/24/2007
Tasers
I've weighed in on this previously with this post.
8/24/2007
Cut and Paste Not Good Evidence
8/24/2007
Great, a New Drug
8/24/2007
A Bird of Another Feather
8/24/2007
Connecticut: No Statute of Limitations on Sex Crimes
8/24/2007
Well, I Guess He Won't Need a PD
8/24/2007
Imagine being the officer . . .
Of course, the prisoner wasn't all that swift either. He left the officer with his cell phone.
8/24/2007
This is going to make things difficult in court
8/24/2007
The Breathalizer Code
A Kentucky court says ignore the Florida court.
Hmmm . . . Didn't we establish a federal judiciary to handle things like this?
8/24/2007
40 Years Later, a Murder Charge
8/24/2007
Racial Differences at Sentencing
8/24/2007
Breath Test Thrown Out . . .
8/24/2007
Why Not Hang the DUI's Who Kill Someone?
8/24/2007
Big Brother is Watching
8/24/2007
Community Impact Statements over the Net
8/24/2007
Should we let sleeping lawyers lie?
8/24/2007
Things you wish you could say
8/24/2007
How has the Anti-terrorism and Effective Death Penalty Act affected Habeas?
8/24/2007
Are Police in the U.K. Useless?
8/24/2007
Person of Interest
8/24/2007
A Police Officer in the Aftermath of a Mini-Riot
"The second reason I mention this fight is that it's the parents are just about to make a complaint about me and I don't need the paperwork right now. The kids seem to be fairly realistic about the whole thing, but the parents think it's my fault that they all got drunk and started fighting."
8/24/2007
3 Wheeler
8/24/2007
Bad Search Warrant
8/24/2007
Get a Good Result . . .
8/24/2007
A Place to Sleep in Prison
8/21/2007
Jury Trial Today
§ 18.2-238. Buying, etc., pig iron, etc., with intent to defraud; possession; evidence of intent.It's amazing how many people there are out there involved in stealing copper wire from various sources (mines being one), burning off the covering and selling it for scrap.
If any person buy or receive pig iron or railroad, telephone, telegraph, coal mining, industrial, manufacturing or public utility iron, brass, copper, metal or any composition thereof with intent to defraud, he shall be guilty of a Class 6 felony. Possession of any pig iron or railroad, telephone, telegraph, coal mining, industrial, manufacturing or public utility iron, brass, copper, metal or any composition thereof, if bought or received from any other person than the manufacturer thereof or his authorized agent or of a regularly licensed dealer therein, shall be prima facie evidence of such intent.
8/20/2007
Lying to keep people from getting the death penalty
It's a vicious circle, isn't it?
8/20/2007
A Judge, PD, One Day, and Contempt
8/20/2007
Killing with a Rattlesnake Box
I think the police would have probably suspected something: "Chief, there were 15 snake bites and gashes around his legs like they were being held in place despite his intense efforts to pull them free. I think there may have been foul play."
8/20/2007
Officer Arrested . . .
8/20/2007
Judge Breaks the Law
8/20/2007
Jailhouse Lawyers
8/20/2007
Stealing a Plunger
8/20/2007
Cop Carding
8/20/2007
Constitution? We don't need no stinkin' Constitution!
8/20/2007
Shoes for Guns
8/17/2007
Tennessee: Mental Retardation Isn't After Puberty
8/17/2007
Passing State Laws for Federal Reasons
8/17/2007
Whatdoyaknow! A Search Warrant Can Be Bad
8/17/2007
Apprendi made retroactive
8/17/2007
Skelly has a good day
8/16/2007
A Whole Lotta Posts
8/16/2007
_
8/16/2007
The 7th Just Doesn't Understand
8/16/2007
Gonzales Good for Defendants
8/16/2007
Not exactly the worst police behavior I've ever seen
BTW - What the guy is screaming in Arabic at the end is "Mohammed is the Uber Prophet of God. There is no God but God."
8/16/2007
You Can't Fire People Because of Their Skin Color
8/16/2007
Proof that Liberals and Conservatives can get along
8/16/2007
What happens if an expert witness testifies contrary to his wife's wishes?
8/16/2007
Prosecutorial Standards
8/16/2007
Exacerbating the Pain of Losing
8/16/2007
Balancing
8/16/2007
64 Juries at One Time?
8/16/2007
Fashion Tips
8/16/2007
All Money is Drug Money
8/16/2007
British Perception of US Prisons
Of course, judging from the comments, they don't seem too happy about the way things work there either.
8/16/2007
$104 Isn't Enough
8/16/2007
Comic Book Nudity
8/16/2007
He Said What About His Client?
8/16/2007
The Pro Se Bar
So, I understand this sentiment.
I do have to say that I have seen some pro se defendant's who do okay in court, but that's usually a sign that they have been there enough times to know criminal procedure. Although, that doesn't seem to help with the guys in prison. They get a field trip every time they come to court, so even the intelligent ones who know what they are doing file tons of non-pertinent motions (usually because they want to re-try the case that put them in prison).
8/16/2007
Ohio: False Report and the Conviction Based Upon It
In Ohio they can.
8/16/2007
Gotta wonder if it's constitutional . . .
8/16/2007
Why Can't You Work for Free?
Sorry, but I doubt it'll work for you.
8/16/2007
Survival Training the Hard Way
8/16/2007
They're 18+
Of course, this doesn't apply if the school itself is having keggers without carding or something similar, but leave the hazing liability between the school and the insurance company. Or, better yet, impose a rule that an academic institution is not responsible for the acts of adult students either civily or criminally unless it actively drew the student into that activity (passive non-interference with acts between adults should not be enough).
8/16/2007
Prison Instead of Mental Institutes
8/16/2007
Whites, Black, the Death Penalty, and the Press
It's true; we've all seen the press do it before. I'm not sure a judge would allow that as mitigation though.
8/15/2007
In the News
2) "DA Wants to Deter Crime" - As opposed to the rest of us in prosecutor offices, who want to see it run rampant and out of control.
3) Castrating your ex's cat with a boxcutter - eye for an eye time?
4) So, your dealer sold you imitation cocaine. What can you do? Well, you could call the police.
5) Hell hath no fury like your angry wife who knows about the stolen $180,000 Aston Martin in your garage.
6) Pig Latin is not going to keep the prison guards from understanding your phone conversation.
8/15/2007
At Least I'm the Senior Partner
Proof positive of what can go wrong when you put your picture up on your blog . . .
8/14/2007
No Matter How Long You Practice, There's Always Something to Learn
Offender was originally charged with DUID. However, the under the influence part was unprovable. Since there was apparently enough evidence to prove driving "while in too bad a condition to drive", the judge reduced the charge to reckless and convicted. All of this is stuff I learn from the court record as I did not try the original charge.
Then Offender appealed in order to get his guaranteed de novo trial. We come to court on his misdemeanor appeal and his attorney tells me that the judge couldn't do that - it's not allowed. I'm skeptical, because I've seen it done as long as I've practiced. So, I go look it up and, whatdoyaknow, defense counsel was correct.
It's all based on Virginia code sec. 19.2-294.1:
Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and with reckless driving in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852, growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.Apparently, sometime in the forgotten primordial ages of Virginia courts, the Virginia Supreme Court ruled that a person could be convicted of both reckless driving and DUI at the same time because they have different elements. The General Assembly took exception to this and passed 19.2-294.1 (although, until 2004 it just said reckless driving and did not state a specific statute). Thereafter, the Courts Appellate Virginian did not admit theoretical defeat while conceding legal defeat. They decided it was the act of driving which was the common act which tied the two charges together under the General Assembly's statute, but that they still had separate elements. Which means that reckless was still not, despite the General Assembly's apparent attempt to make it so, a lesser included in DUI.
In 2004, the General Assembly limited this exception to only the general reckless driving statute and therefore left us in a position where a DUI could be charged with the remaining reckless driving statutes:
46.2-853 Bad BrakesOf course, the judge did not reduce the DUID to one of these, and clearly couldn't because each has it's own separate element to prove which would not be a part of DUI.
46.2-854 Passing on Curve or Crest of Hill
46.2-855 Driving with View Obscured
46.2-856 Passing Two Vehicles at Once
46.2-857 Driving Two Cars Side-by-Side in One Lane
46.2-858 Passing at a Railroad Crossing
46.2-859 Passing a Stopped School Bus
46.2-860 Failing to Signal
46.2-861 Driving too Fast For Conditions
46.2-862 Driving 20 mph over the Speed Limit or 80 mph
46.2-863 Failure to Yield Right of Way
46.2-865 Racing
So, I ended up making a motion for nolle prosequi so that the officer could go swear out the proper warrant and we can all come back to court in a month or so and do it in a procedurally correct manner.
After having looked at it for a couple days, I'm not sure I had to do that. It was the procedurally safe way to handle the situation, but I think the 2004 amendment might have actually trimmed the reckless part of the statute to the point that it now is a lesser included in DUI. The only thing that concerns me is that some of the Appellate Court cases, in order to stretch to find different elements, have stated in obiter ditcum that DUI's can occur without reckless driving. I think that is non-binding and just plain bad logic. Of course, driving under the influence of intoxicants is reckless - that's why there's all that evidence introduced at trial about how the offender's coordination was screwed up.
Hmm . . . it'll be interesting to see if anyone fights this fight in the future.
8/13/2007
Dismissed with Prejudice
So now we have a statute setting out trial procedure as to a dismissal:
§ 19.2-265.6. Effect of dismissal of criminal charges.
No dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice.
(2007, c. 419.)
Why did this change come about? Maybe it's because the General Assembly meets every year and doesn't have enough important work to fill its time with. Maybe it's because someone lost a case when they said motion to dismiss rather than motion to nol pross. Whatever the cause, it confuses judges if you say it. Go on, I dare you. Walk up to a bench in the Commonwealth and ask for a dismissal with prejudice. The judge and attorney on the other side will give you the strangest looks . . .
8/13/2007
Winning an Appeal in the 4th on Guns
8/10/2007
The Cubs are the Cubs Again (in Japan)
Thank goodness! I've been losing sleep wondering what was going to happen.
8/10/2007
Yes, I changed the links
I did away with the daily read section. The blogs I most often read are at the top of the section they're now in. Most of the time I'm reading by rss feed / My Yahoo! now anyway.
I pulled the BigWig blogs out of the long list not so much because they are the BigWigs, but because they are consistently publishing with good quality.
A number of blogs in the long list appear to have faded away. I don't have time now; I'll have to go in and fix them soon.
8/09/2007
Around the Web
2) Video of an offender trying to stab the officer who is searching him, at the station. BTW: No, I can't translate the language they're speaking - all I know is it ain't Merican.
3) Most juveniles adjudicated delinquent because they are not innocent of a felony (pretty sure that's the right language) stop committing crimes before they hit their 30's.
Gotta say I don't find that in the least bit shocking. Common experience tells us that most males calm down sometime in their mid to late 20's. If we really wanted to cut the crime rate we'd just either arrest all males at 16 and hold them until 28 or force every male to join a different structured environment (like, oh, the military) for 10 years at age 17. The crime rate would plummet.
4) An officer at his first murder scene.
5) The "Hello Kitty Pink Armband" punishment for bad officers.
6) We don't really have expungement here in Virgina (you can expunge things you've not been convicted of after a year). However, many States do. The question is whether it still does what it's supposed to.
7) 30 years for a white collar crime? What'd she do, steal the Liberty Bell?
8) What happens when a prosecutor is sleeping with a defendant's mother?
9) What? It costs money to put people in prison?
10) Ummmmm . . . Mark, we do have jury sentencing in Virginia. However, we never gave them the power to impose probation to begin with.
11) States have the ability to opt in to rocket habeases?
12) FBI stoners?
13) Claiming police officers raped you is hard without evidence and when the officers are being tracked in a different place at the time.
14) Parakeet killer gets 30 days.
8/08/2007
A W&L LawProf Blogging
Melissa A. Waters wasn't at W&L Law when I was getting learned there. OMG, look at that CV. That would give anybody an inferiority complex. It makes my resume look kinda pitiful. And, believe you me, I went thru and tried to make my resume as impressive as possible before I posted it after that; it still pales in comparison.
She looks like an interesting person and probably a great professor. I'd say that I'd like to meet her, but for two things. First, looking at her record, I suspect she is several orders of magnitude intellectually above this poor bumpkin; I'd hate to make her have to spend several painful minutes trying to being polite while I was saying things which roughly translated as "UG! Ken like law. UG! Ken am good at it" ('cuz, ya know every guy has to puff his chest in female company). Second, considering my life history and her works, I suspect that if we were in the same room for too long one of us might spontaneously combust. Of course, assuming God is just, that probably means the short, round, bispectacled guy with the shaved head would go boom. And, if I blew up all my creditors would be orphaned. Can't have that.
8/07/2007
So, How Should We Select a Judge?
Of course, that's disturbing. However, if we assume that this is a normal pattern of action we must assume it in any system wherein the judges are periodically reviewed. In Virginia we have our judges selected by the General Assembly. If a popularly elected person is affected by what the populous thinks, a judge chosen by the general assembly would be affected by those winds which blow from the legislature as well. I believe I saw this a few years back when a judge was having a terrible time getting re-appointed because he was viewed as being too lenient on DUI's. The judges were following that closely and, although it may have just been my impression, everybody tightened up. Was that the will of the people? I'm not so certain. I think the problem with judges appointed by the legislature will always be that legislative bodies are disproportionately influenced by lobbying groups and therefore pass on that disproportionate influence to the judges they choose and periodically re-affirm.
Perhaps the biggest flaw in the legislative appointment/re-appointment system is that it can cause judges who are entirely out of touch with the locality to become the judge. In Virginia, depending on what part of the Commonwealth is dominant at the moment, this can mean the rest of the Commonwealth imposing conservative judges on the People's Republic of Northern Virginia or Northern Virginia imposing liberal judges on us unheeled barbarians in the hinterlands.
So, what's the solution? I'm not certain there is one. Every system I've seen has flaws. Gubernatorial appointment and reappointment has almost exactly the same flaws as legislative appointments. Some are enamored with the retention system, but, in my view that system pretty much does away with any accountability. The only way the judge would ever be held "accountable" is if a big case is decided close enough to election time for press coverage to linger in the minds of the people. I'm also not particularly thrilled by the idea of committees choosing the candidates. These committees will be dominated by one group or another and reflect that group's view (pick a group: ABA members, or BigLaw types, or local bigwigs, etc.)
That all said, how do I think that judges should be chosen? Well, it's an imperfect, incomplete thought, but maybe something like this:
Supreme Court Justice: These should have life tenure to remove them as much as possible from political influence. A committee composed equally of members appointed by Bars which are non-general in nature (prosecutor bar, defense attorney bar, plaintiff's bar, insurance defense bar, etc. - only bars concerning a specific area of State law) and that committee will report 4 people to the General Assembly. The General Assembly reports one of these people to the governor who has the option of approving or denying him and then the General Assembly can override that with a 2/3 vote.
Appellate Court Judge: These should have a 10 year, renewable tenure. Nominations should be tied to a region of the Commonwealth. Initially, they would be offered by the governor and approved by the General Assembly. At time for re-appointment 2/3 of the General Assembly must vote to remove the judge from office.
Circuit Court: 10 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit. Selected initially by the Senate. At time for re-appointment the majority of the General Assembly may vote to remove from office.
General District Court: 6 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit (in Virginia district court judges ride the same circuit as the circuit court judges). Initially selected by House of Delegates. At time for reappointment the majority of the General Assembly may vote to remove them from office.
I think this sort of system would balance the influences on the courts by various political entities. I also think it puts people in the appellate courts without too much fear for their jobs so that they can make decisions as a truly independent 3d branch.
Now, all I have to do is figure out how to get Virginia to let me single handedly rewrite the Commonwealth's constitution . . .
8/06/2007
Civil Penalties for Driving Offenses
When the new "civil" fines were added by the General Assembly this notice popped up all over the courthouse (this one was in the elevator).
And now, a judge in Henrico has been the first to find these fines unconstitutional. The case is Commonwealth v. Price.
It was found unconstitutional in Richmond too.
8/03/2007
Windypundit is 5
8/02/2007
Prosecutors on the Web
I am in the unique position of having been hired by a Commonwealth Attorney who had full knowledge of CrimLaw and being retained by a Commonwealth Attorney who also has full knowledge and, while I don't think he reads this very often, has said he will not interfere with CrimLaw. I appreciate the trust. However, I doubt that I would have started this if I had been employed in a prosecutor's office at the time. The prospect of having a "macaca" moment would have probably loomed too large.
With all this in mind, I thought I'd look set out a list of current prosecutors whom I know to be blogging:
Brian Patton - Author: Brian Patton - Mostly a political blog, but Brian's a brand spanking new prosecutor now. Welcome to the other side of the bench.
Seeking Justice - Author: Tom McKenna - Politics, Religion, and the Law. May be dead or dying since Tom has not posted in almost a month.
Judging Crimes - Author: Joel Jacobsen - The point of view of a government appellate lawyer. Technically, he works for the Attorney General, but it's still criminal law advocacy from this side of the bench so I include him.
Issues and Holdings in New Mexico Law - Author: Kirk Chavez - A fairly new blawg which is concentrating on the holdings of New Mexico appellate courts. Well written.
If anybody knows of any others leave me a comment or drop me an e-mail.
8/02/2007
Reactions to the New Layout
I just checked in on your blog- and you've got a real Kevin Spacey/Lex Luthor thing going on... looks cool. (Steve)
I love the chrome dome look. I think of three people when I look at you: G. Gordon Liddy, Steve Benjamin, and Lex Luther. (Jason)
I guess they're better comments than the first thought which popped into my head when I shaved it: "Gee, Brain, what are we going to do tonight?"
8/01/2007
Reasonable Doubt, The Virginia Version
----------- ---------- ----------
The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt. You shall not speculate or go outside of the evidence to consider what you think might have taken place, but you are to confine your consideration to the evidence introduced by the Commonwealth and the defense and unless you believe, upon a consideration of all the evidence before you, that guilt of the defendant has been proved beyond a reasonable doubt as to every material and necessary element of the offense charged against him, then you shall find the defendant not guilty.
The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt. You must limit your consideration to the evidence introduced, and you are not to go outside the evidence to hunt up doubts, nor must you entertain doubts that are speculative or conjectural. If, upon a consideration of all the evidence, you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you shall find him guilty.
----------- ---------- ----------
If you read through the instruction, you won't find a definition of "reasonable doubt." It bounces all around it, bracketing it on one side by stating it isn't a lower level of proof and on the other by stating that it isn't absolute, God given, unshakable certitude. It's something of a definition in the negative.
To my knowledge, the Virginia appellate courts haven't banned positive definitions of reasonable doubt. However, they have strongly discouraged them:
It should be remembered, however, that on numerous occasions we have stated that instructions attempting to define reasonable doubt should be discouraged as it is highly probable that any definition devised would be less illuminating than the expression itself.In that case the court was refusing to overturn based upon a jury instruction defining beyond a reasonable doubt as "an abiding conviction of the truth of the charge" (appellant claimed it should have been "an abiding conviction to a moral certainty of the guilt of the accused"). This case is cited in more modern times as standing for the proposition that
Strawderman v. Commonwealth, 1959 Va. (no. 4928)
We expect jurors to understand the meaning of "reasonable doubt."So, I guess that technically I could offer an instruction that positively defined reasonable doubt and if I got it past the trial judge it would stand on appeal. However, I suspect the older judges would shoot me down because they remember the case law and the younger judges would shoot me down because they are all lectured half to death when they go to "judge school" about the evils of departing from the instructions given in the model book, no matter how many authorities a party can cite for an instruction (which is clearly wrong and I wish they would stop telling judges that - even the model jury instructions decry themselves as stand alone authority).
Shaik v. Commonwealth, 2005 Va. App. (no. 2614-03-4)
However, in the end I'm not sure anything is gained if the positive instruction is offered rather than the negative one. Perforce, both are vague and neither will ever be entirely satisfactory. I didn't like the current instruction as a defense attorney and I don't like it as a prosecutor either; yet, I don't see myself as being happy if I had to use the instruction give in the case above either. In the end, with the vagueness involved in either instruction, it is the jurors who must go back in the back room and decide for themselves where they will draw the line as to reasonable doubt.
Ambush in Bartlette
Chapters 1 - 13
Chapters 1 - 13
Law & Theory
- LAWS
- Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
- Aggravated Malicious Wounding
- The Moped Exception
- Rape by Lie: 1 ~ 2 ~ 3
- No Intent Needed
- Arresting in a House
- Common Law Trespass
- Certificate of Analysis Introduction
- Probable Cause: Car Passengers
- Obstruction of Justice Limited
- Stealing Electronic Items
- Stolen Value: Price Tags
- Stolen Value: No Price Tags
- Stolen Value: Electronic Items
- No Weekend Jail on Felonies
- Obstruction of Justice Limited
- No Trifurcation
- No More Beer at the Barbeque
- Respondeat Superior
- DUI & Reckless Driving
- Can You Steal From the Dead?
- Outlawry Outlawed
- Felony 2d Degree Murder
- Banishment
- Computer Fraud
- Insta-Deputy
- PROCEDURE
- Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
- Invoking Right to Attorney in Virginia
- Who Prosecutes Misdemeanors?
- Expungement
- Surrebuttal
- Virginia's Reasonable Doubt
- Reasonable Doubt II
- Instruction: Right to Arm
- Virginia Castle Doctrine1 ~ 2 ~ 3 ~
- Dismissed with Prejudice
- SENTENCING
- I. Limitations on Right of Judge to Alter a Sentence
- II. Limitations on Right of Judge to Alter a Sentence
- III. Limitations on Right of Judge to Alter a Sentence
- Probation & Suspended Time
- Advisement in Virginia
- Jury v. Judge (sentencing roles)
- Limits on Evidence Presentable to a Jury
- Jury Sentencing Possibilities
- &CETERA
- Witnesses & Writ of Actual Innocence
- Domestic Battery & Firearm Possession
- Domestic Battery & Testimony I
- Domestic Battery & Testimony II
- Domestic Battery & Testimony III
- Domestic Battery & Testimony IV
- Shall Doesn't Mean Shall
- Just Following Orders
- Lycurgus Not Welcome in Virginia
Practice Tips
Specific Cases
- Jones:Trespass = Search
- Shatzer:4th Amendment Expiration Date
- Gant: Limiting Car Searches
- Montejo: No more 6th Amendment Protections
- Padilla & the Prosecutor
- Ventris: Allowing Unconstitutional Questioning
- Carroll Doctrine
Legal Theory
- Best Way to Choose a Judge
- What's a Prosecutor?
- Defense Attorney Purpose
- Plea Agreement Actualities
- The Big 4: Why I can't Go To Jail: 1 ~ 2
- Liquor Use Laws
- How to Fix Va.'s Court of Appeals
- Punishment Scale
- Punishment Scale Explained
- Punishment: There but for the Grace of God
- Heavy Sentences (1)
- Heavy Sentences (2)
- Probation
- Change Felonies to Misdemeanors
- Do Justice?
- Kentucky v. Virginia
- Must Prosecutors Disprove Affirmative Defenses?
- Drug Schedules & Punishment
- Defendants & Situational Sincerity
- 1) Immorality in Pleading Not Guilty
- 2) Immorality of Pleading Not Guilty
- Posner v. Hart & Strict Liability
- More Posner & Strict Liability
- Pre-Stare Decisis
- Let Juries Find People Innocent
- Tell Jury Elements Pretrial
- Falsity of Malum Prohibitum (1)
- Falsity of Malum Prohibitum (2)
- Falsity of Malum Prohibitum (3)
- Brady
- Writ of Spite & Hatred
- Various Riot Acts
- Tazers
- Finding of Innocent
- No Appellate Oral Arguments
- CrimJustice Purpose
- Pro Se Defendants
- Misdirecting the Police
- Stress Seekers?
- Plea Agreement
- Faking Probable Cause I
- Faking Probable Cause II
- Faking Probable Cause III
- Faking Probable Cause IV
- Legalese: Name Changes
- How Could We Best Select a Judge
- RICO & Bin Laden
- Requirement of Defense Attorneys
- Should Lawyers Make Clients Confess?
- Crummy Hired Defense Attorneys
- Noble Defense?
Back When I was a Defense Attorney
FEB03
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A Week in the Life
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A Week in the Life
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A Week in the Life
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A Week in the Life
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01 Long Week
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05 Long Week
I'm a Narc
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Frustrating Day
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Angry Relative
01 Long Week
OCT04
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04 Long Week
-----
01 Long Week
02 Long Week
03 Long Week
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Client Families
DEC04
01 Long Week
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03 Long Week
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06 Long Week
Surprise at Prelim
Confronted
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A Moment in Court
A Moment in Court
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Huh?
Raccoon Attack
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Picking on a Prosecutor Intern
Moments in the Life
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A Federal Habeas
NOV05
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Petition Freak Out
Moments in the Life
Moments in the Life
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DEC05
Moments in the Life
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Jury Trial Fizzle
FEB06
A Bench Trial
Bittersweet "Victories"
A Prosecutor Tries to do Right
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What Just Happened?
Va. Worse than Conn.
Illness as a Defense Attorney
Failed Prison Visit
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Heard in a Courthouse
Appellate Court Argument 01
Va. Court of Appeals
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Heard in Court
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Bad Press
Entire History of a Trial
Bad Press 02
JUL06
I Must be too Good
AUG06
Announce Becoming Prosecutor
The Last Life in a Week
Monday
Tuesday
Wednesday
Thursday
Friday
Client Communication
~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~
CYA Letter: Felony Client
CYA Letter: Appeal
-----
Dear Mr. Jailhouse LawyerConversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents
Time as a Prosecutor
JAN07
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Competency
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Ma'am I'm the Prosecutor
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I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
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Jury
FEB08
CrimLaw Prosecutorial Corollary #1
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Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange
Criminal Law
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In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.
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