Why Change That Law (Part Duex)

A while back I was reading through the new statutory changes (in place as of July 01) and found something which seemed like tweeking the statute just for tweeking's sake and when I posted it ya'll were kind enough to provide an explanation of why the statute was changed. So, I've got another one for you.

18.2-308.1(B) as currently constituted:

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony; however, if the person possesses any firearm within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

This is being changed into 18.2-308.1(B) & (C):

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony.

C. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be guilty of a Class 6 felony and sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.

Okay. Got it figured out. Halfway through writing the post I realized that the same bill which does this also changes the list of violent felonies under 17.1-805 (for sentencing guidelines) so that the only violent felony under 18.2-308.1 is the newly created subsection C. So, if an 18 year old kid is dumb enough to bring his hunting rifle to school to show it to his buddies he may end up with a felony, but it won't be a mandatory minimum 5 year, violent felony.

Lawyers, Morality, & Law

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That's more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things. Imagine a United States wherein anyone who has not been employed, in a taxable job, for 6 months out of a year is put on probation and if they are not employed for 6 months out of the next year they are executed. It would have several salutary effects. The would be far fewer people on the dole. There would be a strong incentive for people to be productive. Additionally, since people would have a strong incentive to not work under the table, a large portion of the underground economy would surface and be taxed. And all it would take is to kill those among the 13.7 currently unemployed in the U.S. who can't find and keep a job.

I understand the impetus behind the lawyers' thinking. We see the flaws in the legal system day after day after day. Day in and day out, it is difficult seeing morality through imperfect statutes, enforced by less than perfect officers, manipulated by lawyers, and interpreted by flawed judges. It is so much easier to put one's head down and say they are just rules, nothing more and nothing less. The very fact that we see the flaws in the trees leads us to deny that there is a forest.

And yet the forest exists.

In Memory

Have You Gotten Your Justice Shed Yet?

For Americans who are sick and tired of annoying technicalities like "due process" and "proof beyond a reasonable doubt" a video explaining how to set up your very own Justice Shed:

Negotiations at Their Best

Prosecutor: "He shot him in the gut. I'll offer 3 years for maiming."

Defense Attorney: "Maiming!?! Nobody around here is going to convict him for shooting Johnny Smith."

Prosecutor: "Okay, what do you think he should be convicted of?"

Defense. Attorney: "Destruction of property. That was a pretty decent shirt Johnny was wearing. Nobody should have their property torn and stained like that.'

Disclaimers and the Bar

A Richmond lawyer, Horace Hunter, is in the midst of a conflict with the Bar over whether he has to put a disclaimer on his website informing readers that the results he announces are not guarantees of future results. Horace is publishing occasional summaries of cases in which he was involved. I picked a sample of 7 of these and read them. They are in a basic press release format. A strong paragraph at the beginning identifies the victorious case and client and also makes it very clear that Horace is the attorney in the case. Then there is a short factual/philosophical/legal/tactical discussion. None of the summaries I read had anything confidential information in them. All of the summaries are published in a blog format under the moniker "This Week in Richmond Criminal Defense."

So, as far as I can tell, the only real complaint the Bar can have is the lack of a disclaimer. As you all know, I am a big believer in disclaimers and have had one on my blawg at least since 2006. In its current incarnation it states:

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.

Of course, my situation is different from Horace's situation. My blawg was meant to show things from my point of view. This has ranged from war stories to comments on news stories to goofy things that have caught my eye to analysis of laws and cases. It was never intended to get clients to walk into my office. Horace's posts are clearly meant as a type of press release and as a means to flesh out his website.

I understand that the ethics folks are interested in making sure that the public realizes that there is no guarantee that a result with one particular client, in front of one particular judge, in one particular jurisdiction will mean that other clients will get the same result. If I'd have been Horace, I would have probably put in a disclaimer at the bottom or side - confidant that most members of the public aren't going to read the boilerplate anyway. However, he has decided to make a principled stand based upon the 1st Amendment right to freedom of speech. Bravo. It is always good to see a person make a stand for something he believes in. It will be interesting to see how that eventually plays out.

An interesting question is whether a disclaimer is actually needed to inform the public about the nature of the information they are getting. The summaries are clearly on a law firm's website and about that law firm. They are written in the stilted, awkward format that press releases always have and are obviously self promoting of the lawyers in the firm. Granted, not all criminal defendants are the sharpest crayons in the box, but anyone computer savvy enough to get to the website and navigate to the case summaries should have enough brainpower to realize this is an advertisement. Does an obvious advertisement need something to point out it is one?

Personally, I view disclaimers more as a way to protect the attorney rather than the client. Would I put up a disclaimer in Horace's place? Sure, I would. Not because I thought the clients are too dumb to understand that I'm not going to advertise the cases with less than optimal results for the client or that they will be misled to believe I win every case. Not because the Bar has some arbitrary rule. No, I'd do it to protect my own hide. Would I actually expect any clients who came to my site to read the disclaimer? No. However, clients who lose complain to the Bar, file malpractice suits, or try to get a writ of habeas corpus. That disclaimer goes a long way toward neutralizing spurious claims that the things I published on the web misled the client into thinking she was going to win that robbery case with her DNA on the scene, video of her committing the offense, and a witness list against her that had 4 nuns in it.

New Virginia Criminal Laws

Strange changes in the Gambling Law

Virginia has put together all its legal changes and, as per usual, there's always one or two which don't make a lot of sense to me. The definition of illegal gambling has been changed as follows:

a. For the purposes of this subdivision and notwithstanding any provision in this section to the contrary, the making, placing, or receipt of any bet or wager of money or other thing of value shall include the purchase of a product, Internet access, or other thing, which purchase credits the purchaser with free points or other measurable units that may be (i) risked by the purchaser for an opportunity to win additional points or other measurable units that are redeemable by the purchaser for money at the location where the product was purchased or (ii) redeemed by the purchaser for money, and but for the free points or other measurable units, with regard to clauses (i) and (ii), the purchase of the product, Internet access, or other thing (a) would be of insufficient value in and of itself to justify the purchase or (b) is merely incidental to the chance to win money.

Obviously, this is done in an attempt to make internet gambling illegal. First, it makes the common sense correction of deleting the part which makes gambling only illegal if done at a physical location. The weird part is where it talks about purchasing iternet access of insufficient value to justify its purchase or incidental to the chance to win. I understand that they are trying to shut down internet gambling, but no one is overpaying for internet access as part of a coverup for gambling. Still, I think that the inclusion of "or other things" covers what they were trying to get to because the transfer of funds to an internet site for "credits" (or whatever a site calls them), which are basically worthless except for their value in gambling, seems to fall within that language.

I wish they were somewhat more precise in their language. "Other things" does leave open an argument that electronic credits are not things, but conceptualizations of potentialities; I'm sure those of you out there who are defense attorneys will find a simpler way to say that to a judge. They are not things because they have no physical embodiments outside of the ever-shifting electrons in any electronic brain system (that's a computer for those of you who have never read old science fiction).

On the other hand, "thing" is a broad catch-all word in English. It clearly does not have to denote a physical item. We've all seen the television show with the detective saying, "Here's the thing, I don't believe you." In that example, "thing" is referring to a belief or state of mind, not a physical item. As well, we'd all understand if Steve Jobs were on a stage talking about the iPhone 6 and he said something like ". . . and our support website for the phone is a thing unto itself." Therefore, a website, and by inference other things on the web, is a thing.

[addendum] After putting some thought into it, I think what the General Assembly meant by "internet access" is probably access to a particular website. The purpose is probably to keep people from paying $5,000 for a week's access to "Texas Hold'em Heaven." As such, the language used fails because "internet access" does not cannote, in normal usage, the access of a single site, but the access of the internet in its entirety. However, I think that "other things" also covers site access.

How the U.K. Views Americans

Sometimes, the best way to understand how another group of people perceives you is to watch portrayals in popular media. It's there where people let slip what they actually think.

As a fan of science fiction, I've been watching the new season of Doctor Who. Consequently, I've seen a couple scenes which might give a clue as to what the folks living on the islands on the other side of the Atlantic think about us.

[For those of you who don't know, the Doctor is an alien who moves through time and space fighting evil aliens and solving problems. He usually travels with two or three humans.]

Scene One:

The Doctor has snuck into the Oval Office and is seated in the president's seat. About 10 Secret Service agents are standing with their pistols pointed at him. The Doctor is sitting there smugly saying something to the effect of, "Really? I just snuck into the most secure room in the world and you think you are going to shoot me?" At this point, one of the Doctor's companions (who has been watching) runs into the room shouting "They're Americans!!" The Doctor jumps out of the seat and says nervously, "Don't shoot! Definitely, don't shoot!"

Scene Two:

An American FBI agent is facing down an alien and asks it if it is armed. The alien answers back in an ominous tone, "We have manipulated you since fire and wheel. We need no weapons."

At that, the FBI agent draws his pistol and guns the alien down.

----------

Somehow, I'm getting the impression that we might be seen as a little gun happy.

Saturday Fun

Just gonna have some fun today and post up a few things that caught my eye.

I Want One

You know, the law covers firearms, pnuematic guns, knives, throwing stars, street sweepers, sawed off shotguns, and machine guns, but I don't think there is anything in the law forbidding me from walking down the street with a Gatling Style Slingshot Crossbow:

If you look at this guy's vids, he also has a semi-gatling style hand version. However, it doesn't have a triggering mechanism like the crossbow version.

Ritzification of Music

Caucasian Conversions (all female leads with geeky guy back ups):

The Most Popular (I like the part where she refuses to actually sing the lyrics because they are so bad):

The Best (watch for a minute - it gets really good):

Also Very Good (Very NSFW):

I may be in love with the girl in the second video. Wow. The only problem is that I'd be too easy to manipulate. Every time she wanted me to do something I didn't all she'd have to do is start singing. I'd get mesmerized and follow right along . . .

NASCAR to Start Thursday Night Races

NASCAR has announced that it is adding a new race series in the 2012 schedule. The new races will be scheduled on Thursday nights and feature a vehicle of mandated design, much as the Nationwide and Sprint cars have been required to adhere to design requirement. Robert Tankersly, VP of Developmental Promotion announced the new race on the 28th of April:

We though about adding motocross, but the necessity of trucking in tons of dirt and removing it before the Camping World series made that impractical. We've not been able to convince any television outlets to cover the iRacing series. As well, the open wheel racers are not willing to give their series over to our control and we have some concern that if we showed people that style of racing it might detract from followership of the Nationwide and Sprint series. So, we went out and designed and created an exciting new form of racing.

At this point, revealed a prototype of the vehicle planned for use in the new Piggly Wiggly Cup Series:

It was announced that restrictor plates on these vehicles will limit them to a maximum of 75hp.

Reaction among current racers was uniformly positive. Rookie Martin Payton, whom NASCAR introduced with the prototype as a man expected to rise through the Piggly Wiggly Cup series, compared the vehicle with the ones at his store in Asheville.

We had three of these in our store for handicap use. After hours, when we got tired of stocking, we'd race those things around the store three or four times. This will be pretty much the same except the track won't have wax on it and nobody'll get fired if a boss walks in. I can't wait to get my Quaker Oats, Jello, Hot Pockets cart out there and win our team a Piggly Wiggly Cup.

While none of the major teams have announced that they will participate so far, there are persistent rumors that Kyle Busch already has sponsors lined up an will make an attempt to win all four races in one week.

Why Change That Law?

I'm going through all the new laws the General Assembly of Virginia has passed and trying to figure out which ones change criminal or traffic laws so I can brief the local deputies and officers. Sometimes I wonder exactly why a change was made. For instance, as 46.2-859 currently stands, it is illegal to pass a (un)loading school bus:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion.

Apparently, that didn't work because the General Assembly is changing the statute (effective 01 July) to:

A person driving a motor vehicle shall stop, such vehicle when approaching, from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and shall remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion; any person violating the foregoing is guilty of reckless driving.

The only reason I can conceive that this change is being made is that somewhere out there a defense attorney is arguing that the current statute is oblique and does not specifically require a driver to stop and therefore punishes drivers for doing an activity which they are not forbidden to do. It's a creative argument, but I can't see any judge I've practiced in front of buying it.

So, the question is, do I tell the LEO's about this or just blow it off as the General Assembly tweaking a statue without changing its meaning in any significant way?

Gotta admit, I'm leaning toward the second.

Pay to Prosecute?

Sometimes, when you are reading through the statutes you run across some interesting things. Today, I was reading through the pre-trial sections of the Virginia Code to check on some indictment procedures and found this:

§ 19.2-229. When complaining witness required to give security for costs.

For good cause the court may require a complaining witness to give security for the costs and if he fails to do so dismiss the prosecution at his costs.

It's an interesting statute in that it does not require the Commonwealth to pay costs; thus, it's not a redundant section requiring payment for attorneys or experts in an indigent case. This is aimed directly at "a complaining witness."

Who, then, is this aimed at? One possibility is that it was meant to apply to citizens who come in time after time after time after time to the magistrate swearing out warrants for every time their neighbor looks at them cross-eyed. Also, it might be intended to keep merchants from using bad check charges to collect their money without paying the fees that it would cost to do civil collection. Of course, the problem with these possibilities is that vast majority of those charges are handled in General District Court and Virginia Code Section 19.2 only applies to Circuit Courts.

A second question which comes to mind is whether, should a defense attorney move that the judge impose this section on a complaining witness in a case, would the prosecution have standing to oppose the motion? After all, the prosecutor represents the government; she's not the personal attorney of the complaining witness.

How to Tell the Jury Trial is Going to be Difficult

You know that it's going to be a long day when the judge introduces the parties to the jury like this:

"Ladies and gentlemen, the attorney sitting at the table closest to you, with her client, is Martha Hampton. I always have to ask what her name actually is before I introduce her to a jury because for the last 25 years that she has been practicing law here in Pitcairn county everyone has always called her 'Honor.' I think her daddy gave her that nickname, just like he called her brother Martin, who owns the big car dealership in the town of Lesterton, 'Tiger.' She's been doing this for a while and she'll be defending Mr. Jones today."

"And the Commonwealth is represented by Ken Lammers."

"Now, I'm going to give some preliminary instructions . . ."

Why they're not filming Justified in Harlan

Last year I started watching Justified, the story of Raylan Givens. Givens is a Marshal who grew up in Harlan County, Kentucky. He screws up and gets sent back to Kentucky. Chaos ensues as he takes out the bad guys in Harlan. Now, we're in the middle of season 2 and Givens is taking out the next group of bad guys in Harlan. If you don't take it too seriously, the show is a lot of fun. On top of that, it's also fun to come into the office and tell the lady in my office who is actually from Harlan how every bit of crime in Kentucky somehow goes her home.

You'll recall that last year I was a little derogatory about the fact that the show wasn't actually filmed in Kentucky, much less Harlan County. However, I've come to realize that there is a reason they aren't filming there. So far, all Kentucky crime goes through Harlan, and both the sheriff and local police chief have been shown to be corrupt. Just imagine the film crews interacting with the locals once the locals realize how they were being portrayed.

Suddenly, every time one of their vehicles goes 2 mph over it gets pulled over and cited. "Sorry sir, but I can't let you go with a warning. People might get the impression that law enforcement in Harlan is corrupt." And, imagine the process for getting permits. "No ma'am, I'm afraid we can't take any shortcuts. You'll have to fill out all 134 pages in the application and wait until we get approval from the department of tourism in Frankfort. It should not take any longer than 3-4 months."

Maybe they made the right choice in deciding not to film in Harlan after all.

Can We Stick to a Standard? Please?

We all know the basic standards we deal with every day in court.

Reasonable Articulable Suspicion
Probable Cause
Preponderance
Clear & Convincing
Beyond a Reasonable Doubt

This is where most of the standards have shaken out to. If you read back through old cases they are more protean because the language hadn't shook out yet, but you can usually see what they were developing into. So, in the modern era we've figured out the language and the appellate courts use the language and standards they have developed.

Don't they?

Of course they don't.

For most of us, this came to light last a couple years ago in Arizona v. Gant. In that case the US Supreme Court adopted a "reasonable to believe" standard when deciding the conditions that officers can search a car. If it is reasonable to believe that evidence of the crime the officer is arresting the driver for is in the car the officer can search the car. That is amorphous as all get out. Are they merely re-affirming the Carroll Doctrine? Or are they stating that reasonable articulable suspicion is enough under these particular conditions? The rest of us now get to fight over all of this for years because the Court couldn't bother to be clear.

However, it's not just the US Supreme Court which does this to us. Recently, I got a message from a fellow prosecutor who was arguing with a defense attorney over what the standard is in a probation violation hearing. I snapped off an answer, "Preponderance, because it is a post-conviction hearing." Of course, being lawyers, they weren't willing to take me at my word and the next thing I know, I'm looking through case law trying to support my position. As I look I realize that the answer I gave was based upon research that I had done about federal sentencing, not actual Virginia research.

Under Va. Code sec. 19.2-306, a judge can impose time which has previously suspended upon finding "good cause to believe that the defendant has violated the terms of suspension."  So, the question becomes, what is "good cause?" Turning to the case law, I traced the standard to be applied to Slayton v. Commonwealth,185 Va. 357 (1946). In Slayton the Virginia Supreme Court stated that the standard is not beyond a reasonable doubt. Instead "revocation is a matter within the sound discretion of the trial court . . . reversible only upon a clear showing of abuse of such discretion." Abuse occurs when the judge does not use "conscientious judgment", instead taking "arbitrary action." A further gloss on this appears in Marshall v. Commonwealth, 202 Va. 217 (Va., 1960). In Marshall, The Virginia Supreme Court "[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause." So, splicing Slayton and Marshall together the standard for a probation violation is reasonable cause within the sound discretion of the trial court.

I don't know how anybody else reads that, but that language reads to me as tracking fairly consistently with the probable cause standard - "a level of reasonable belief, based on facts that can be articulated." That's an incredibly low standard. Perhaps this is because no one has actually challenged whether violations must be proven to a preponderance standard. It's a little disturbing to think that the standard is low enough that it could be less than 50% likely that the violation occurred.

Law School Tenure

Once upon a time the way that someone became a lawyer was to "read" law. Basically it was an apprenticeship in which a aspirant lawyer worked at an established attorney's office for a period of years and upon completion the aspirant became a full fledged lawyer. It was a good system for providing street level attorneys. Then came the law schools.

I picture the advent of law schools as an attempt to make things more scholarly and professional. Keep in mind that law has always been one of the four professions - medicine, law, priesthood, & teaching. As such, it was within the province of the upper class and sending young Master Smythe off to study at Harvard Law was a sort of finishing school which gave him a greater view of the legal word before he went into running the family business, or politics, or some such noble endeavor. Then came the ABA.

In the late 19th century, the ABA pushed for the elimination of reading law in favor of law schools. They have been eminently successful at this. In fact, they have managed to exterminate it in all but 4 states: California, Vermont, Virginia, & Washington. This was probably an attempt to limit entry to the profession and ensure the quality of legal training. The side effect has been the alienation of large portions of those who actually practice law and perceive law school as nothing more than a barrier between them and practice. Many practitioners bemoan the fact that law school did not prepare them for the realities on the ground in Pitcairn County and the steep learning curve they are exposed to immediately after passing the Bar and actually beginning the practice of law.

In fact, there has been a steady drumbeat in favor of making law schools more practical. Because of this schools have started programs and clinics for students to shadow prosecutors, work with public defenders, do legal aid work which otherwise would not be available, etc. On the other hand, there has been serious pushback from the law schools which do not want to extend these limited programs to general practicums required for all students. The usual rubric given is that law school is a school of post-graduate education, not a trade school.

Still, whichever side of this debate one falls on, I don't understand how taking tenure away from law professors is supposed to fix it. It has become increasingly popular to think that the removal of tenure will fix everything at any school. Yes, the lack of tenure will allow a school's administration to remove a professor who is off track and spending an unusual amount of time praising Sharia law in his Evidence class ( a personal memory of law school) . On the other hand, it also gives the administration a free hand to remove those professors with whom the Dean or President disagree.  The professor who keeps insisting on pushing racial inequality issues in admissions (and making the school look bad) - gone. The professor who upsets the other faculty members because he is a card carrying member of CATO and publishes an in-your-face blog about law and libertarianism - gone. And, if you think the publish or perish atmosphere at law schools is bad now, just imagine the pressure to publish if everyone is on a 5 year contract, renewable at will of the Dean and recommendation of a faculty committee. The lack of tenure strikes me as a great way to increase political maneuvering amongst the faculty and administration, silence those who have points of view not congruent with the administration's position and goals, and cause professors to concentrate on publishing to the detriment of students.

How does any of that move in the direction of the ABA's stated goal of making law schools more flexible and cost efficient? A law school administration doesn't need to remove tenure in order to make practicums part of the curriculum for all students. If the ABA really wanted to make things more cost efficient, perhaps it should develop an approved reading law curriculum and push States to re-adopt that model.

Is a Work Performance Bonus a Good Idea?

From The Faculty Lounge:

[A chief prosecutor] paid bonuses last year to felony prosecutors who won convictions in at least 70 percent of their cases. They were required to have tried at least five cases, and plea bargains and mistrials didn’t count. Prosecutors assigned to complex trials were exempted. The average bonus paid was $1,100.

I applaud the concept of trying to pay your best employees a bonus at the end of the year. However, I have my doubts as to whether the best prosecutors will get this bonus.

In reality, this bonus would not affect the majority of prosecutors. They would go on doing their job in the manner they always have and let the cards fall where they may. However, every profession has its share of ethically challenged. Of course, we on the prosecutorial side of the courtroom have so few that it might be said that they are a vanishingly small number, but I'll assume their existence just to discuss this bonus program.

To begin with, if a prosecutor is doing her job with even a little bit of competence, the vast majority of all cases are going to settle. Of course, none of these cases will count toward the bonus. This is a flaw. In general, it's the uncertain cases which go to trial. The prosecutor is convinced of guilt, but the evidence might not be so strong as to make the case a slam dunk. On the defense side, one of the factors to be taken into consideration is the perceived capability of the prosecutor in the case. If John Smith has a reputation as winning almost every jury he's ever tried, the defense attorney is less likely to recommend a jury trial for his defendant. Thus, established, competent prosecutors are less likely to get the bonus because they are known to be competent.

On the other hand, a prosecutor who wanted that bonus, but had concerns that the case is a close call, has an incentive to dump the case. This incentive has nothing to do with whether the defendant is guilty; it has to do with the prosecutor wanting the money. Thus, the aggravated snipe hunting case gets reduced to misdemeanor snipe hunting and probation because the prosecutor thinks he has only a 60% chance of winning the case and any loss counts against his bonus.

Another effect of this would be a shifting of defendants' incarceration lengths from those with harder evidentiary cases to those with easier evidentiary cases. In Virginia we have sentencing guidelines. Let's say that Defendant's sentencing guidelines for embezzling $5,000 from a local church and shoplifting a pair of $250 boots from Wonder-Mart are the same: from 7 months to 1 year and 5 months with a mid-point of 1 year. Typically, a defendant pleading straight guilty is sentenced by the judge to the mid-point. Thus, the current incentive is for the prosecutor to offer some sort of discount in order to get the defendant to plead guilty; in this case we'll operate on an assumption that the prosecution would offer a 3 month discount (a plea offer of 9 months).

The embezzlement case is harder to prove. The records are voluminous and will bore the jury to tears. The defendant is the beloved coach of Pitcairn High's football team. The defendant's psychiatrist is claiming he suffers from post traumatic stress from losing last year's state football championship when the ref made a bad call. None of this makes Defendant any less guilty, but it could all make the case more difficult. On the other hand, the shoplifter comes from the Greene family (whom everybody in Pitcairn County knows are crooks), is on video doing the crime, and confessed.

The prosecutor, realizing the first case will be difficult and influenced by his desire to get that bonus, offers the low end of the guidelines to Embezzler; the prosecutor may even agree to a sentence below the guidelines. In the end, Embezzler gets 6 months, instead of 9, and Prosecutor's conviction record is safe. As for Shoplifter, the prosecutor really wants her to go to trial. In fact, the bonus provides an incentive for the prosecutor not to offer any deal at all. As well, if the defendant pleads straight guilty to the judge, the prosecutor is then incenitivized to push the judge to a sentence higher than the mid-point in order to make future defendants not want to plead straight guilty and perhaps influence them into taking jury trials. Assuming the prosecutor does not want to be too obvious, he will probably make some sort of offer, but it will be what everyone expects the judge to offer or perhaps very slightly less. He just wants enough easily convicted defendants to choose a trial so that he can boost his convictions - not enough that he is having a jury trial every other day. So, Shoplifter gets 12 months or maybe 11, instead of 9. Of course, there is always an incentive to offer a little better deal in any hard case, but at least without this bonus system there's no reason to increase the offered sentence in easy cases.

I laud the chief prosecutor for trying to reward good work. Any kind of bonus system is going to be difficult to justify. If the chief prosecutor hands out bonuses based solely upon his belief as to who has done the best work he is likely to cause bad feelings in the office as prosecutors perceive that he is playing favorites. On the other hand, any metric he lays out can be gamed so that the individual prosecutors act to enrich themselves rather than seek justice. Personally, I don't think the bonuses offered in this scheme are enough to influence prosecutors throughout the entire year, but there will always be the suspicion. Maybe the only way a bonus system could work is if the same bonus is given to each prosecutor depending upon the prosecutor's level in the office hierarchy.

Overheard

Prosecutor to Defense Attorney: "You seem to have some concerns that I may not have the evidence to convict your client. I must tell you that I do not share your concern."

Metal, Metal Everywhere and Villiany Defined

One charge we often prosecute is the theft of copper wire, and any other metal items which aren't nailed down and guarded 24 hours, from mine sites. However, the theft of metal isn't limited to just mines. You just can't leave a house alone anymore because there's a fair chance you will come back with all your wires stripped out. So, I've been trying to put together a brief summary on the laws related to this for those of us in the Commonwealth Attorney's office to use. And here it is . . .

Scrap Metal Processors

To begin with, all "scrap metal processors" can buy ferrous scrap from anyone (per 59.1-136.2), but they can't buy any metal from any individual under the age of 18 (§ 59.1-136.4). Ferrous metals are iron and steel, but not stainless steel (59.1-136.1) and scrap metal processors (SMP) are businesses with equipment "for processing and manufacturing scrap metal into prepared grades for sale as raw material (Id.).

When law enforcement requests, SMP's are required to report all nonferrous metal they buy within a day of the purchase. This report has to include information about the seller including his name, birth date, ID number, address, height, weight, and the license plate number of the vehicle in which he drove into the scrap yard (§ 59.1-136.5). Another section requires the SMP to keep a ledger with the seller's identification information, the license of the car the seller came in, and a description of the items sold. The seller is also required to produce a government ID under this section (§ 59.1-136.3).

If all this is complied with the SMP can buy "proprietary articles" from anyone over 18 selling them as long as (a) the seller has papers proving he has the legal right to sell the proprietary articles, or (b) the SMP documents a diligent attempt to find out if the seller has a right to sell the items, reports the sale to the police within 24 hours, and holds the item for 15 days (§ 59.1-136.3(B)(2)). Proprietary articles include copper wire 3/8" and aluminum wire 3/4" (§ 59.1-136.1).

All the above statutes above are in the Trade and Commerce part of the Virginia Code (§ 59.1). All violations of this section are class 1 misdemeanors (up to 12 months; up to $2,500 fine) and, perhaps more devastating, the local town/city/county attorney can assess a $7,500 fine for each violation and that fine goes directly to the locality instead of Virginia (§ 59.1-136.6). A fine which goes directly to the locality is like throwing chum in the water to draw sharks.

General Prohibitions

There are several statutes which place general prohibitions against purchases on everyone who wants to buy metal. Remember, unless the scrap metal dealer has the ability to change the incoming items into prepared grades to be sold as raw material he does not qualify as an SMP. I suspect that most purchasers we deal with do not have the capability of rendering the incoming product into straight raw material. They probably have equipment to crush it and then ship it elsewhere, but it's unlikely they have the ability to separate all the impurities (paint, other metals, glass, etc.). Thus, the first thing to do is figure out whether the scrap dealer is an SMP or someone subject to these laws.

Going back to the Trade and Commerce section, it is illegal for anyone to buy "bare or insulated heavy stranded copper or aluminum feeder wire, high voltage copper or aluminum transmission wire, or bare or insulated mining machine copper cables" unless the seller is the manufacturer, the industrial user, the government, an electrical contractor or a licensed scrap dealer (or an agent of one of them) (§ 59.1-128). Of course, this carries the same penalty as described above for all violations of § 59.1 - class 1 misdemeanor or $7,500 civil penalty to the locality for each violation.

Now we move on to the Criminal Section (§ 18.2). There are two statutes here §§ 18.2-237 and 238. § 18.2-238 makes it a crime to buy any metal which came from a mine or railroad (among other places) if it is bought with the intent to defraud. If the metal was bought from someone who is not the manufacturer, the manufacturer's agent, or a licensed dealer it is prima facie evidence of the intent to defraud. This is a class 6 felony (up to 5 years).

18.2-237 applies to "secondhand grate baskets, keys, bells and bell fixtures, gas fixtures, water fixtures, water pipes, gas pipes, or any part of such fixtures or pipes." This section also requires a purchase with an intent to defraud and has the same prima facie assumption, however, it is only a class 2 misdemeanor (up to 6 months).

So, your jurisdiction has a shady scrap metal dealer. First, you determine whether the business is an SMP. If it is, you are probably stuck in the SMP section with a bunch of misdemeanors because that section was written to apply directly to them. However, if the business does not have the equipment to fit under the definition, then you can hit it with the more serious criminal charges. Of course, the question in each of these cases is, who do you charge? If there are employees who haven't been trained to do all the necessary things, do you charge the employee or do you charge the owner who wasn't even there. Whichever one is charged will point his finger at the other as the actual culprit.

Probably the best way to handle this sort of thing is to get with the locality's attorney and start civilly citing the business for every single teeny-tiny violation. Your locality's attorney will probably be quite happy to get money which goes directly to the locality. The level of proof is mere preponderance. The business can be cited because this is a civil failure to maintain proper business practices. Eventually, Smith's Scrap Metal will decide it's not worth a $7,500 fine to look the other way and pay $100 for metal it can sell for $500 if it's getting fined every time (either that or it will go out of business).

Around the Web

1) States are passing "no refusal" laws which require prosecutors and judges to be available when DUI checkpoints are going on so that instant warrants can be issued when people refuse breath/blood tests. ~ I think Virginia handles this better with the civil refusal charge that takes a person's license for a year if they don't submit to the test.

2) Fairfax police have gotten the 1st runner up "Black Hole Award" for refusing to turn over information to the press about possible officer wrong-doing.

3) This story is best summarized by the shirt.

4) Pills aren't just being sold and abused in the mountains.

5) Want to get rid of young, thuggish loiterers? Play loud, classical music.

6) Should prosecutors be taped when they talk to suspects? (Japan)

7) New stricter anti-protester laws in Egypt. (um . . . should we tell them it's too late?)

8) Someone is breaking into attorney offices in Bristol, Va., but no on is sure why.

9) The Reds are on top of the Central (celebrate while you still can).

10) The very height of investigative journalism: the courthouse roof is leaking.

No More Synthetic Cannabinoid

After several months of kids going to hospital for smoking "incense" the General Assembly and Governor have passed emergency legislation (in effect immediately) outlawing it:

§ 18.2-248.1:1. Penalties for possession, sale, gift, or distribution of or possession with intent to sell, give, or distribute synthetic cannabinoids; manufacturing.

A. For the purposes of this title, synthetic cannabinoids means any substance that contains one or more of the following and any preparation, mixture, or substance containing, or mixed or infused with, any detectable amount of one or more of the following:

5-(1,1-Dimethylheptyl)-2-[3-hydroxycyclohexyl]-phenol (other name: CP 47,497);
5-(1,1-Dimethylhexyl)-2-[3-hydroxycyclohexyl]-phenol (other name: CP 47,497 C6 homolog);
5-(1,1-Dimethyloctyl)-2-[3-hydroxycyclohexyl]-phenol (other name: CP 47,497 C8 homolog);
5-(1,1-Dimethylnonyl)-2-[3-hydroxycyclohexyl]-phenol (other name: CP 47,497 C9 homolog); 1-pentyl-3-(1-naphthoyl)indole (other name: JWH-018);
1-butyl-3-(1-naphthoyl)indole (other name: JWH-073); 1-pentyl-3-(2-methoxyphenylacetyl)indole (other name: JWH-250);
1-hexyl-3-(naphthalen-1-oyl)indole (other name: JWH-019);
1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (other name: JWH-200);
(6aR,10aR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol (other name: HU-210).

B. It is unlawful for any person to knowingly or intentionally possess synthetic cannabinoids. Any person who violates this subsection is guilty of a Class 1 misdemeanor.

C. It is unlawful for any person to sell, give, distribute, or possess with intent to sell, give, or distribute synthetic cannabinoids. Any person who violates this subsection is guilty of a Class 6 felony.

D. If a person proves that he gave, distributed or possessed with intent to give or distribute synthetic cannabinoids only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the synthetic cannabinoids to use or become addicted to or dependent upon such synthetic cannabinoids, he is guilty of a Class 1 misdemeanor. Any person who gives, distributes or possesses synthetic cannabinoids as an accommodation and not with intent to profit thereby, to an inmate of a state or local correctional facility as defined in § 53.1-1, or in the custody of an employee thereof is guilty of a Class 4 felony.

E. Any person who manufactures synthetic cannabinoids or possesses synthetic cannabinoids with intent to manufacture such substance is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years and a fine not to exceed $10,000.

F. Any drug not listed in this section or the Drug Control Act (§ 54.1-3400 et seq.), which is privately compounded, with the specific intent to circumvent the criminal penalties for synthetic cannabinoids, to emulate or simulate the effects of synthetic cannabinoids through chemical changes such as the addition, subtraction or rearranging of a radical or the addition, subtraction or rearranging of a substituent, shall be subject to the same criminal penalties as for synthetic cannabinoids.

G. Upon conviction, in addition to any other punishment, a person found guilty of a violation of this section shall be ordered by the court to make restitution, as the court deems appropriate, to any innocent property owner whose property is damaged, destroyed, or otherwise rendered unusable as a result of such synthetic cannabinoid production. This restitution may include the person's or his estate's estimated or actual expenses associated with cleanup, removal, or repair of the affected property.

Sluts and Allies Unite

SlutWalk Toronto is going to take place on 03 April. Yes, you read that right, there is going to be a slutwalk in Toronto. What's more, the organizers want to unite with their allies during the slutwalk. Honest. I have proof from their site:

You might ask, what in the ever-loving-world is that all about? Well, I'll tell you.

A little while back an officer went to a law school in Toronto and said that although women are not responsible for the behavior of men who commit sexual assaults against them, those women who are concerned can take steps of their own and act in a risk averse fashion. It was the equivalent of the officer saying that while a home owner is not responsible if his house is burglarized, the owner should not walk around the local WonderMart having a conversation with his wife about how they never lock any doors or windows on their mcMansion. He may want to have that conversation, he has the right to have that conversation, and he is not legally responsible if someone who overhears that conversation burglarizes his house. However, if he is risk averse he might choose not to have the conversation.

So, how did the officer get in trouble? He did not use PC speak and he did not recognize the absolute necessity that every citizen who is acting in a legal manner must not be cautioned that his/her behavior, while legal, may expose that person to danger. He also didn't seem to realize that he was in a place which had at least a fairly liberal atmosphere.

He said that one way for women to avoid sexual assault is to not dress like sluts. The answer is simply too blunt and too likely to stir up emotions. The officer's already been disciplined for being truthful - hopefully the only thing his superiors made him do is learn PC-speak so that the next time he speaks truth he won't use emotionally powerful words to say it.

The lesson here? Speak blandly.

The Slides For the UDC Law Symposium

As you read this, I should be in D.C. either lost hopelessly or having found my way to the UDC Law Symposium, "Life After the War on Drugs." I thought I'd publish the slides I plan to use. Enjoy.
 

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The "War on Drugs"

I'm preparing for a symposium at the University of District of Columbia School of Law. The title of the symposium "Life After the War on Drugs" (scroll down the page to get the info). It will be interesting because I'm sure that I'll be exposed to a much different perspective than I'd run into in Virginia.

Anyway, it's my hope that this is the harbinger of the death of the analogy "War on Drugs." I hate this comparison. Wars are eventually won or lost. Wars involve the invasion of, and holding territory. Wars threaten the actual destruction of the countries involved. The interdiction of illegal drugs is a policing action.

Policing never ends. Of course, where the line is drawn for policing is a policy / morality / philosophy decision. However, the enforcement of that line is an ongoing matter.

Drug abuse has been around for a long time. It will be around for a long time. Alcohol and opium have been around for a looooooong time. Distilled (more powerful) alcohol has been around since sometime around 2k B.C. Distilled heroin and cocaine have been around since the 1800's. Anti-drug enforcement goes back to at least the 7th century (Quran bans alcohol and hashish). U.S. enforcement goes back to 1875 when San Francisco tried to ban opium dens.

Unless we just walk away from drug enforcement, adopt a "let 'em die in the streets" attitude, and let legal pharmaceutical companies flood the streets (and crowd the current illegal dealers out), we are going to be trying to find ways to stop abuse for all time. Police interdiction will remain a significant part of these efforts. Let's name it for what it is and stop calling a permanent effort a "war."

The Right Not to Get Caught

Overheard in the hall:

Young Defense Attorney: My client keeps insisting his rights were violated, but I can't find anything. Do you see any constitutional violations?

Older Defense Attorney: Well, they violated his right not to get caught shoplifting with 23 oxycontin pills in his pocket . . .

God Bless the Buchanan County Sheriff's Department

 

Four sheriff's deputies were ambushed yesterday in Buchanan County, Virginia. Responding to a larceny in progress, Deputy William Ezra Stiltner and Deputy Cameron Neil Justus were killed by a sniper hidden in the woods on a mountain. As law enforcement converged on the scene and began searching for the shooter, Deputy Shane Earl Charles & Deputy Wayne Rasnake were shot and seriously injured by the sniper. Both remain in critical condition.

May God bless all these men and look after the two deputies still struggling for their lives.

Jurisdiction to Have Jurisdiction

I'm in the middle of prepping for a couple things right now. In the next couple weeks, I'm going to go to DC and talk about the devastation and dynamics of pill abuse and then turn around and come right back so that I can give a two hour presentation on all the criminal cases which have come down from the Virginia appellate courts and those cases relevant from the 4th Circuit and federal supreme court (for the local Bar's CLE). I spent the weekend prepping up the CLE stuff so that I could turn it in and have it sent out to all the attendees on a thumb drive. The stuff for the symposium at the law school in DC is still ongoing because of the current insanity that is ongoing in Florida (the governor is trying to kill anti-pill mill activities).

Anyway, in anticipation of the CLE, I've been breaking down the new criminal law cases every month. As you might expect, that means there are a few cases where I jotted down the major rule of the case and have spent no time thinking about the case for several months thereafter. For one in particular, I looked at the note I had taken and was stumped:

Mohamed v. Commonwealth, APR10, VaApp No. 1078-09-4: Although subject matter jurisdiction can be raised at any time, the judge's authority to exercise his subject matter jurisdiction must be raised at trial or it is waived.

I sat there, looking at this and could not, for the life of me, figure out how a judge could have subject matter jurisdiction, but not have the power to exercise it. In my defense, it was getting late and my synapses weren't all firing, but I can still usually figure these things out with a couple minutes thought. Nope, gonna hafta look this one up.

Ah, it's a probation violation case. The court did something after the defendant's probation was over to punish the probationer for something he did while under probation. Hence, the court had subject matter jurisdiction to handle probation violations. However, the appellate court is kind enough to explain to us that the ability to exercise jurisdiction is a totally separate kind of jurisdiction in and of itself. Thus, the defendant could object that the trial court had no subject matter jurisdiction and be wrong because the court has that jurisdiction. However, the failure to object to the “authority to use” jurisdiction waives it.

Wow, that's a mighty thin hair to split. One might even say that inherent in any jurisdictional ability of a court is the authority to use it and that challenging that authority ipso facto is a challenge of the jurisdiction. I think the court's reasoning goes like this:

Subject Matter = Jurisdiction

Authority to Use = Jurisdiction +

It's like splitting can and may. Can is the original jurisdiction. I “can” go to the office next door and punch the guy who works there (and run like heck). I “may” not go over and punch him (silly anti-battery laws). May includes can. If I can't do it whether I may is irrelevant. If I have no cake and someone grants me the right to eat cake it's cruel and may end badly for the grantor, but I still can't eat cake.

Mind you, any jurisdiction still includes within it the authority to exercise the jurisdiction. I think that this kind of analysis could only be used when there is an intervening factor (ending of probationary time) that could end the ability of the court to exercise its power. Perhaps the court would have been better off making the distinction between general subject matter jurisdiction and the trial court's personal jurisdiction over a probationer.