May 31, 2009

Things Learned Doing Ride Alongs

As a prosecutor, every so often I go along with a law enforcement officer on a "ride along." It's an interesting experience and I suggest it to anyone who has the opportunity because it gives you a look at what things are really like before they become sanitized in the courtroom. There are a few things that I've noticed on these rides:

1. People do not react well when a police car is coming down the road at high speed with lights flashing and sirens blaring. Some people just don't seem to feel they need to get out of the way. BTW, even if there are two lanes, and the passing lane is empty, pull over. A car traveling at a high rate of speed has a good chance of coming partially into your lane on that curve ahead. Worse is when people turn on their left turn signals and then pull off to the right. I've seen this twice, both times on two lane highways with little room for the officer react.

2. People drive poorly - even without alcohol. Cell phones, arguing with others in the car, eating that burger, &cetera all seem to be more important to people than staying in their lane and not swerving over into oncoming traffic.

3. Every time I've done a ride along there's been at least one mental or physical health call. Most of the time the mental health call involves keeping a scene as calm as possible until the ambulance arrives and is able to take the distressed person to the hospital. The physical health calls are usually things like someone slumped over the wheel of car by the side of the road. Not much can be done but to get there and get the lady to the hospital. Interestingly, civilians at the scene of mental health problems usually seem calmer than people at the scene of physical health problems.

4. No matter how many officers respond to a house/trailer/apartment complex they are almost always outnumbered. I'm not sure how this happens, but it seems that no matter how many officers arrive at the scene more neighbors, kin, or just plain troublemakers will simply appear. Much of the time the officers who respond to these kind of situations are peacemakers, calming everyone down and separating the two sides rather than arresting anyone.

5. The law requiring drivers passing police cars at a stop to pull over to the passing lane or (if unable) to slow down is an extremely good idea. It's amazing that more officers aren't hit as they walk back and forth between their cars and the cars they've pulled over. The side of the highway can be extremely narrow (at least here in mountain country).

6. Eating at a restaurant with a group of officers usually has this part in the conversation (regarding the restaurant's staff): "We've arrested him and him and her and, hmmm, when did Peter get back out of jail?"

7. The officers want to know how to do things right. Almost every time I've done a ride along there's been a discussion of 4th and 5th Amendment requirements brought up by the officer because he's heard that there's been some change (things like Gant and Montejo) or he's seen a defense attorney argue something in court or because he's had some tricky situation come up which he's unsure of.

8. People will admit the most amazing things to officers: "How do you know MaryBeth stole your transistor radio?" "Well, she and I were in my apartment last night doing some shrooms and the radio was there. When I woke up in the morning MaryBeth was gone and so was the radio."

May 28, 2009

Montejo: The Defendant Must Assert His Rights Directly to the Officers' Face

Important Cases Involved: Montejo v. Louisiana, Michigan v. Jackson (overruled), Miranda v. Arizona, Edwards v. Arizona

Tuesday the Supreme Court went out of its way to squash the 1986 decision Jackson. In Jackson the Supreme Court had, under the 6th Amendment, expanded the protections against constitutional violations by stating that as soon as an indigent defendant asked for an attorney to be appointed he had asserted his right to have an attorney present at all important parts of a trial, including any subsequent police interviews. Louisiana played games with the Jackson decision. Its supreme court ruled that because a defendant didn't actually request counsel when he went to court and had an attorney appointed, he didn't get the protection of Jackson.

Reviewing this, the US Supreme Court decided that because in some States indigents have attorneys appointed upon a showing of lack of funds rather than a request Jackson had to go. It backed this by stating that the 5th Amendment provided redundant protections, via Miranda and Edwards which are not being removed by the revocation of Jackson. It then sent the case back down to have a 5th Amendment analysis done.

Before I discussed this, I wanted to take an opportunity to review Edwards because the Court seemed to both say that it provided redundant protections to Jackson and less protections (the reason the case was returned to the State courts for another analysis). In Edwards a defendant claimed his right to have an attorney present during questioning. The questioning stopped, but the next day the defendant was read Miranda again, waived his attorney and made incriminating statements. The court held

[W]e now hold that, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police.

Practical Application

As a practical matter, Motejo and Ventris render 6th Amendment protections during an interrogation non-existent. Combined with the basic reality that law enforcement plays by the rules we give them, this fundamentally changes the reality of police interrogation.

Law enforcement officers can interview the defendant at any point up to the time of his actual trial and are only required to stop if he unambiguously asserts his 5th Amendment rights. LEO's are not required to inform the defendant's attorney of this or have her present during the interrogation. Furthermore, non-coercive subterfuge tactics, such as placing an informant in the cell with the defendant, even after an assertion that the defendant wants his attorney present during interviews, would only be barred under the 6th Amendment from use in the prosecutor's case in chief, but could still be used in rebuttal.

May 26, 2009

Croson, Diversity, & the Virginia State Bar

"Diversity" has a long history of being used to mask lowered standards and quotas for subsets of the human race. In US history this can be traced back to when Harvard's president was unable to use quotas to limit the admission of Jewish students (who scored well on the competitive entry exam), but the use of "diversity" reduced Jewish admissions to the desired 15% anyway.

In the modern era, the goal of "diversity" is something which we all should look at with suspicion. In particular, as lawyers we should look very closely at any such claim. A requirement that all people, regardless of ethnicity, gender, or creed, shall be equal under the law and that equals receive the same opportunities is laudable. However, the second "diversity" steps an inch over into the zone of set asides it becomes not just morally wrong, it becomes unconstitutional.

Anyone who has gone to law school post 1989 should know this. In 1989 City of Richmond v. Croson struck down governmental set asides for anyone in a specific zone unless in remedy of a specific past discrimination in that field and the set aside was the most narrow method of curing the discrimination. "Reverse discrimination" is just as much discrimination as any other under the constitution.

Of course, since Croson those who want set asides have learned not to say so out loud. "Diversity" has become the flag behind which they now gather. Those of us who would be excluded have become wary of this.

Comes now the Virginia State Bar, an administrative agency of the Virginia Supreme Court created by the General Assembly, and decides that it no longer needs to be the organization which patrols the activities of lawyers. It needs to be an organization engaged in social engineering. Through the last president and the current occupant of that office, we are having set asides pressed upon the Bar. The president wants to change the mission of the Bar, create a Diversity Conference, and create a seat on the VSB Council and Bar Executive Council for the Chair of that conference. Mind you, this is creating a seat based not upon expertise in any area of the law or judicial circuit representation or acclaim and recognition by the Bar in general, it's a seat solely because the person occupying it is "diverse."

With this in mind, it becomes extremely important to know what the president means by "diverse." However, the president of the Bar, being a lawyer, knows better than to do that because it would make his initiative unconstitutional on its face.

IT HAS BEEN SAID that we need to precisely define diversity to create such a structure. I disagree.While diversity by necessity must not neglect consideration of race, heritage, and gender, for example, I believe that the term must be allowed to evolve.

I'm surprised he actually went so far as to admit race, heritage, and gender must be considered (be the admission ever so backhanded). Nevertheless, without defining it he has declared it extremely important in the pursuit of the law.

Via the Virgina Lawyer (our Bar magazine), members have raised strong, well-reasoned objections to this as outside the scope of the Bar's function, a controversial social issue which the Bar should not get involved in, and an obvious beard for quotas. "'Diversity' Ends in a Racial Headcount", "Disband Task Force,Withdraw Proposal", "Rule of Law Not Linked to Diversity", "Focus on Individuals, Not Groups", "Disband Diversity Task Force".

Will these letters stop the Bar president? Probably not. Let's be honest, most lawyers couldn't give a hoot as to what the Bar is doing (right or wrong) unless it impacts their life or they need its protection. No one I've talked to even knew this initiative is pending. It'll get through without the notice of the vast majority of the Bar.

Next comes the possibility of legal challenge. After all, the Bar is created by one branch of Virginia's government and serves another; it's a government agent. Can it create these set asides? In particular, can it set aside a position on the VSB Council and VSB Executive Council based upon "diversity?" It's a question which might require some data before the question can be decided. After all, by opening the diversity committee to individual lawyers the Bar allows all Bar members to join. In other words, there won't be a sign at the door saying "White Male Christians need not apply." It's theoretically possible that this committee might actually be diverse. If the membership distribution of the conference is roughly equivalent to the membership distribution of the Bar and its leadership reflects such the conference would be constitutional. Want to take bets on whether that will be the case?

May 24, 2009

In Memory of Those Who Chose to Serve

May 20, 2009

Because Even a Defense Attorney Might Want a Badge

If you're suffering from a serious case of badge envy, you too can pay $120 and get an "Officer of the Court" badge made. It won't give you any real powers, or actually mean anything, but I'm sure it will impress someone.

May 18, 2009

"Holier Than Thou" / "There But For the Grace of God"

Sherry Colb has an article about what I think most of us who practice criminal law would recognize as the "those people" attitude. She gives it her own spin, calling it the "holier-than-thou effect." Basically, it is the inability of people see themselves as a person who would fail in situations where they were tempted - through chance, fate, or desperation - to break the societal compact as embodied in the law.

Ms. Colb goes further identifying 4 purposes to criminal law: retribution, deterrence, incapacitating offenders, and rehabilitation. She identifies retribution as the primary focus of the American system based upon the lack of rehabilitation programs in prisons in combination with rapes and gangs. Then she concludes that locking someone away in this situation, away from law-abiding citizens is a bad thing, so that shorter sentences are most likely preferable.

Indeed, the situation-dependent nature of behavior counsels against surrounding a person convicted of wrongdoing with other criminals for long stretches of time, during which he will be almost entirely cut off from what lawful behavior in civilized society looks like. Shorter and less brutal sentences, coupled with humane and educational transition opportunities for former prisoners, could yield better results for everyone.

To take into account the holier-than-thou effect might also facilitate the forgiveness necessary to our ability to think logically about the problem of crime. If we are filled with rage and hatred, it will be more difficult for us to imagine, and thus to allow, that someone who committed a bad act in the past might soon become (or might even have already been) a contributing member of society.

This article struck me as wrong in many ways, but I'm just going to concentrate on one here: Ms. Colb badly overestimates the effect of "holier than thou" on the system. Our system is far more dominated by the "there but for the Grace of God" thought process.

Here's a graphic of how I've observed the punishment of offenders in the time I've been practicing.



I've tried to be a little conservative in my estimates for this chart. In reality I think that the downward slope is more severe. However, I don't have actual figures, so I adjusted by assuming higher numbers of more severe punishments. In any event, it gives a true view of how offenders are actually punished.¹

Why is there such a severe downslope? Because the greatest number of offenses are treated with mercy. People just don't get thrown in jail for reckless driving, DUI, writing a bad check, or most misdemeanors the first time they are convicted (without aggravating circumstances). There's a good chance they won't go to jail for a second or even third misdemeanor conviction, particularly if they are different types (driving suspended, bad check, assault and battery). Furthermore, there's a whole slew of felonies wherein the first conviction will only get an offender probation.

Next come the convictions which should lead to incarceration, but do not because they are somehow diverted. Sometimes this is just having a case continued to be dismissed if there are no problems for a year. In other cases there are drug courts, shoplifting classes, anger management programs, and/or community service given in lieu of incarceration.

Then come the minor incarcerations. I don't know how many offenders get a couple days in jail or 10 days or 3 months, but I lay odds that by far the largest number of incarcerations fall within that range. Misdemeanor courts hand out punishments such as this daily and any misdemeanor court which has significant numbers of defendants appearing before it probably hands out several a day. Felony courts hand out incarcerations in the "up to 6 month" range all the time to offenders with prior misdemeanor records or their second or third felony conviction.

Even for those who actually have incarceration imposed there are mitigations against its effect. Most commonly these mitigations include serving time on days off of work (weekend time) and getting work release. However, it can also include things such as delayed reporting to jail, furloughs while in jail, or home incarceration. Even failing all of this, most every incarceration system has some sort of "good time" so that if the offender behaves he is not required to serve a certain amount of his sentence.

In my experience, to get more than a year an offender has to have a prior record, have committed multiple offenses, have committed a violent felony, or violated a particular law (firearm with drugs, 4th DUI, use firearm in felony). To get more than two years incarceration an offender usually has to combine two or more of these elements; 3 to 5 years usually requires even more of a combination of these elements. To get above 5 years the offender usually has to do something significant: armed robbery, rape, murder, etc. It may not be impossible to get above five years without having committed a major violent felony, but it'd be mighty hard (unless in a State with a very strict 3 strikes law). The most I've seen an offender convicted of larceny or the like get in Virginia is 5 years and even then it was a departure above guidelines.

Somewhere between 1 to 3 years of potential actual sentence comes the point at which mercy stops being an option. Even at 3 years a judge in Virginia can order the Department of Corrections to have an offender entered into a specific drug treatment program run in the prison. Still, there must come a point at which the tendency toward mercy must be overcome by obligations to the citizenry at large.

In these more serious offenses retribution, deterrence, and incapacitation are all tied together. A robber whom a jury sentences to 10 years in retribution is incapacitated for those 10 years and serves as a deterrence for those who consider following in his footsteps. However, when we consider the system as a whole, we must conclude that the system serves more of the purpose of deterrence and incapacitation. After all, no one really gets recompense (outside of restitution) in a criminal case. Retribution is at heart a distributive justice theory and no victim can have that which is taken in a rape or shooting actually returned by putting the other person in prison. At best, if one thinks that recompense can be made by putting someone in prison, the only person(s) brought back to equilibrium is the victim. For the rest of us it matters not whether the victim is made whole. For the vast majority of people the only effects are the protection of society through the incapacitation and deterrence.


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¹ Please note that most of this is modeled on Virginia's judicial system and the sentencing guidelines in place in Virginia.

May 17, 2009

Movie: Beyond a Reasonable Doubt

Y'know, life at my office isn't anywhere near this exciting:

May 11, 2009

More on Flores-Figueroa

I got a couple interesting comments on my last post. Donald first raised the Rule of Lenity because the statute is poorly written. I couldn't quite get there, but it did start me thinking. What if you ignored the way the Court did its analysis and looked at the statute as a whole, considering "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" as a verbal phrase, thus rendering "transfers, possesses, or uses, without lawful authority, a means of identification of another person" into a multi-part verb all of which is modified by knowingly. However, while the thought was still nascent in the slow-grinding gears in my head, Neal Goldfarb stepped up and pointed to a blog post and his amicus brief. Both put forth strong arguments for that position. Both are better than the Supreme Court's "'cuz it looks right" explanation.

However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.

Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.

Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.

May 5, 2009

Flores-Figueroa: Forgiving Sloppy Statutese

[1] The USSC decided a case yesterday contrary to the actual language of the statute - using the language of statutory interpretation. In Flores-Figueroa, the Court had to decides "knowingly" is not an adverb but a substitute for the phrase "knowing it to be." The Court is interpreting this statute:

[2] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. 18 U. S. C. §1028A(a)(1)

[3] However, when the Court is finished with it, the statute ends up being this:

[4] transfers, possesses, or uses, without lawful authority, a means of identification knowing it to be of another person.

[5] The Court's rationale is that

As a matter of ordinary English grammar, it seems natural to read the statute’s word "knowingly" as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word "knowingly" applies only to the statutes first four words, or even its first seven.

[6] Poppycock. Balderdash. Fiddlesticks.

[7] "Knowingly" does not equal "knowing it to be." To be certain, the statute is poorly written and would make much more sense if it were written in the manner which the Court decided to rewrite it. However, as we all learned somewhen about the 3d grade, "ly" is a suffix indicating an adverb. This confines it to the verbs, "transfers, possesses, or uses." Thus, the government is quite correct in claiming that "knowingly" applies only to those four words. The Court is correct in stating that "without lawful authority" (the next three words-making "its first seven") isn't modified by "knowingly" because they also modify the verbs.

[8] Before anyone argues that certain adjectives can also end in "ly", I concede the point. Words such as "lovely" are clearly adjectives: "the lovely dress." Still, the general rule isn't violated in this case.

[9] In any event, I invite you to diagram that statute. Go on, it's a skill we all learned in seventh grade English class. Okay, now look at that line which separates the verbs from the object. Which side is "knowingly" on? The verbal side. Or, if you don't have the rudimentary English skills to do that, just take "knowingly" and try to fit it anywhere into "a means of identification of another person" without changing the form of "knowingly." It doesn't work.

[10] Justify your decision another way. Tell me that the Constitution, via the common law, requires a defendant to intend every element of a crime. Tell me there's a rule of statutory interpretation requiring intent for every element of a crime. Heck, tell me there's a scriviner's error. Just don't tell me you've reached this conclusion "as a matter of ordinary English grammar."

May 4, 2009

Announcing My Availabilty to Serve

Apr 30, 2009

Kansas v. Ventris:
Trimming Protections Against Unconstitutional Interrogations

[1] In Kansas v. Ventris the question presented to the US Supreme Court was whether a confession gained by police instigated interrogation of a defendant after he has an attorney can be used to impeach the defendant's trial testimony.

Facts

[2] After Ventris had an attorney, police sent an informant into his cell to get information. The informant reported that Ventris confessed the crime to him. At trial, the defendant testified that he did not commit the crime. The prosecution then used the informant in rebuttal to impeach the defendant. After conviction defendant appealed the planting of the informant in his cell as unconstitutional questioning without the defendant's attorney present (or waiver of his presence).

6th Amendment Right to Counsel

[3] Scope of the Right: The Court makes it extremely clear that the right to counsel is not limited merely to the actual trial. The defendant is definitely entitled to his 6th Amendment right to have his counsel present at any pretrial interrogation.

[4] Scope of the Remedy: Unconstitutionally obtained statements shall be allowed in rebuttal. They are still banned from the prosecutor's case in chief.



[5] The entire basis of this decision is the Court devaluing the constitutionally guaranteed right to counsel in favor of the a non-constitutional mandate that courts should be protected against possible perjury and disruption of "the integrity of the trial process." This is poorly reasoned, favoring the discouraging of illegal acts over the forbidding of unconstitutional ones. It is badly out of kilter with modern constitutional cases such a Virginia v. Moore which proclaim that illegalities are irrelevant as long as the constitution is followed.

[7] Not every illegal act is unconstitutional. Perjury started out as a common law crime (Blackstone, Book IV Chapter 10 sec. 16), but has long since been a statutory crime. See 18 USC 1621, Kentucky Revised Statute 523.020, Rhode Island General Law 11-33-1, Michigan Penal Code 750.422, and Alaska Statute 11.56.200. Even Virginia, with its fondness for the common law, has made perjury a statutory offense. In either event, perjury is a criminal offense against the orderly pursuit of justice and the constitution is silent upon whether the government has a right to unperjured testimony. This does not mean it approves of it; it just means that it was a matter left to the legislatures to sort out and thus became a matter of law rather than constitution (as demonstrated by the statues enacted).

[8] As well, perjury as a criminal charge is not within the bosom of the courts. As an initial matter, the decision of whether someone has committed perjury is prerogative of the prosecutor - not the courts. Should a prosecutor have proof that perjury has been committed the statutes clearly lay out the remedies which the various legislatures have allowed prosecutors to seek. All of these require a trial specifically on the matter of perjury and its proof beyond a reasonable doubt. None of them rise to the level of a constitutional matter.

[9] What the Court is actually talking about here is impeachment. It's a handy way of short stopping the entire issue of perjury. The level of proof for impeachment is far lower than would be required in giving someone their constitutional right to a trial on perjury and its requirement of proof beyond a reasonable doubt. Impeachment merely requires some rational quantum of evidence tending to show that the testimony of a witness was not truthful. Of course, impeachment is a valid part of any trial and it's not mutually exclusive of a perjury charge. However, it is instructive about what the court actually decided.

[10] The US Supreme Court decided that presenting evidence which does not rise to the level of proof beyond a reasonable doubt of perjury - merely tending to show that a defendant's testimony was not truthful - is more important than a clearly violated constitutional right to have counsel present during questioning. As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.

[11] Ultimately, in a most amazing paragraph the Court simply states that no harm will come from this because it's not likely a defendant will testify in his own defense anyway and that an officer won't violate the right because then the evidence gained will only be usable to impeach the defendant's testimony and the officer can't anticipate that the defendant will get on the stand and tell a story inconsistent with the story he'll tell the officer when his right to counsel is violate.

[12] On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen - or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief.

[13] That's correct, a US Supreme Court decision is based on a belief that it is unlikely that the defendant will testify. It's backed up by a statement that shows an amazing lack of understanding of why a statement would be taken by a police officer. The exact purpose that an officer would be taking a statement after the defendant has an attorney is to lock him into a particular version of the facts with the thought that the defendant could tell a different story at trial. After all, if the officer expected the defendant to take the stand and testify exactly in the manner most likely to lead to a conviction, why would he waste time trying to get a statement from the defendant?

Practical Application

[14] As a practical matter, this opens up several tactics to law enforcement. Prior to this decision the further development of the case through human information gathering techniques was severely limited after the defendant had a lawyer. Now the Supreme Court has given its imprimatur to the continued use of human information gathering techniques despite a defense attorney's involvement.

[15] Informants, whether they be planted in jail or sent to approach a defendant on bond, are clearly sanctioned by this opinion. Furthermore, this decision's scope seems to allow police to reinterview the defendant after the appointment of an attorney. Neither of these will produce evidence which can be used in the prosecutor's case in chief. However, the mere fact that a charge has been taken should reflect that the prosecutor already has enough evidence for his case in chief. The purpose of the actions taken after a defendant has an attorney will be to preclude the defendant from testifying or build a crushing case against him should he choose to do so. These are all constitutionally valid tactics per the Ventris decision and if these are the rules we lay down for our law enforcement agencies we should expect they will play by the rules we give them.

Apr 27, 2009

Gant: A Sea Change in Car Searches

[1] On 21 April 2009 the US Supreme Court changed decades of law enforcement practice by clamping down on searches of vehicles incident to arrest. Arizona v. Gant is a tour de force by Justice Stevens in which he weaves his way through all the old precedents to change the interpretation most lower courts have given to the ability of officers to search cars after arresting their drivers.

[2] Gant's theory both prunes and widens the circumstances under which an officer may search the car after an offender is arrested. In reality, the effect is a net reduction in the scope of officer searches.

[3] The prior rule was that after any arrest police could search the passenger compartment of a vehicle because of "exigent circumstances." In other words, once the offender was placed under arrest the officer could search the car in order to preclude the possibility that the offender might destroy any evidence or reach a weapon. Of course, any sane officer restrains a person he has placed under arrest before he turns his back on that person in order to search the car. However, this had never seemed to bother lower courts and had even seemingly been given a pass (although never specifically approved) by the US Supreme Court.

[4] The new rule has 2 parts. First, if there are actual exigent circumstances, such that the defendant(s) is not restrained and could actually reach something inside the vehicle, a search can take place; however, "exigent" searches can no longer happen when the offender is handcuffed and properly restrained. Since an arresting officer should always prioritize to his own safety, this situation will be extremely rare.

[5] Second, an officer can search a vehicle if it is reasonable to believe evidence of the crime the offender was arrested for will be found in the car. An example is if an officer arrests someone who has just stolen from Mega^Store and sees two of the stolen items in the car; it'd be reasonable to search the car for the other 4 items the thief stole at the same time.

[6] Every lawyer I spoke to seemed to have pretty much the same reaction: they predicted a great upsurge in vehicle impoundment and inventory searches subsequent to the impoundmment. Typical of such reactions was lawscribe's (via Twitter): "You will [see] a massive jump in inventory searches and careful review of dept policies to make cars consistently easier to impound."

Impounding in Virginia

[7] With this in mind I went looking to see what is allowed vis-a-vis the impounding of vehicles. In Virginia the controlling case is King v. Commonwealth from 2002. King lays out a set of rules under which impoundement can take place. The first rule is that there must be a standard police policy under which the vehicle is impounded. However, even a written policy does not, in and of itself, make the impoundment valid.

[8] Beyond the written policy, there are only two justifications for impounding a vehicle. A vehicle must either be a risk to public safety or need to be safeguarded. Although not absolutely exhaustive, the generally approved circumstances for impoundement are when the vehicle is blocking traffic, trespassing on private property, or violating parking ordinances/laws. Neither the fact that a vehicle is parked next to a busy road nor that it may be vandalized is a satisfactory reason to impound a vehicle.

[9] A vehicle also may not be impounded if the offender is able to arrange for the vehicle to be moved. Generally, the mere fact that an offender is under arrest will preclude such an arrangement. However, if there is another citizen present at the scene, who is a legal driver and who will take the car to where the offender wants it, an officer is required, by Virginia Code sec. 19.2-80.1, to allow that citizen to drive the car from the scene.

[10] Finally, a vehicle may not be impounded for the purpose of performing a search upon it.

[11] Personally, I don't see impoundment becoming a major issue in Virginia. King is solid, long-standing precedent rooted in the 4th Amendment so that the rules cannot be changed by the Virginia General Assembly.

Apr 20, 2009

Race, Knives, & Fists: More on the Jason Vassell Case

Back in February I wrote a post complaining that I couldn't figure out whether the charges were justified against Jason Vassell, a black student charged with 2 counts of aggravated assault and battery with a dangerous weapon under (I believe) MGL Chapter 265: Section 15A:

(c) Whoever:

(i) by means of a dangerous weapon, commits an assault and battery upon another and by such assault and battery causes serious bodily injury;
. . .
shall be punished by imprisonment in the state prison for not more than 15 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

(d) For the purposes of this section, "serious bodily injury" shall mean bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

There has been a rather strident campaign launched in support of Mr. Vassell and my former post elicited a response which laid out the factual position claimed for Mr. Vassell and asked me to read the Defense's Motion to Dismiss.

I did. It moved me much further along the line toward belief in Mr. Vassell's guilt of A&B (the gradation of the appropriate final conviction I am still uncertain of). Let me explain.

The Law

Apparently Massachusetts allows for the pretrial dismissal of a case if 3 conditions are met:

In order to obtain a dismissal on the basis of selective enforcement, the defendant must initially offer evidence that reasonably permits an inference of unlawful discrimination by showing that

(1) a broader group of persons than those prosecuted has violated the law;

(2) the failure to prosecute others was either consistent or deliberate; and

(3) the decision not to prosecute others was based on an impermissible classification factor such as race, religion, or sex.

If the defendant satisfies that initial burden, the Commonwealth must then rebut the inference that there has been selective enforcement, or the case will be dismissed.

Commonwealth v. Palacios Docket 05-P-52

Defense counsel does yeoman's work trying to stretch this test to cover the facts of the case at hand. He expends a great amount of effort showing that the "victims" in this case were brutish, aggressive, racist cretins. He shows some strong indications that law enforcement jumped to some improper conclusions. Yet, he never gets past the first test.

The way the defense tries to get past the first test is to conflate the assault by one of the "victims" and the assault and battery by the other "victim" on Mr. Vassell with the assault and battery with a weapon by Mr. Vassell. There are two flaws in this. First, neither of the "victims" used a weapon as required by the statute Mr. Vassell is charged under and thus could not have been part of the same group as Mr. Vassell. Second, it's doubtful that the case from which this test comes is talking about a small group. Palacios is about a claim of selective enforcement of DUI and driving with a suspended license against a driver based upon his ethnic background. The "group" would be all drivers - a rather large group.

Even if a group of 3 people was sufficient, the presence of only one weapon, the knife held by Mr. Vassell, causes the defense's argument to fail the second test. There cannot be a consistent or deliberate failure to prosecute the "victims" because it is impossible to charge them under the same law.

The Tactics

Why would defense counsel put this argument forth? Because Mr. Vassell is in a world of hurt. By the defense's own statement of facts after the initial conflict Mr. Vassell picked up a knife, carried it to the location of the second conflict, and drew it before he was physically attacked.

I don't know Massachusetts case law, but if it is anything like Virginia, the use of fists (as the victims did) carries with it a inference that the intent is not lethal while the use of a knife (as Mr. Vassell did) carries the opposite inference. When Mr. Vassell brought and drew a knife he unilaterally escalated to the use of lethal force. On the facts, it appears that Mr. Vassell is guilty of that which he is charged.

On the other hand, Paracios also states that in Massachusetts

If the defendant's charge of racial profiling is not established prior to trial, it may not subsequently be raised again as a defense. However, we distinguish between racial profiling and racial bias. Denial of the motion to dismiss does not by itself eliminate the right of either party to challenge at trial the testimony of a witness on the ground of racial bias. The right to cross-examine a witness regarding racial bias is not unfettered, however, and the judge may reasonably limit the extent and scope of cross- examination on this, as on any other, subject. Where the defendant makes no plausible showing to support his claim of racial bias, the judge may prohibit reference to a witness's alleged bias altogether.

In other words, the defense might not have the law or facts of the second conflict on its side, but it has all sorts of impeachment evidence which it could use to make the prosecution's "victims" look very bad and damage law enforcement witnesses as well. And it's just demonstrated that to the prosecution.

This motion strikes me as a gambit played as part of negotiating a plea. The defense is showing that it will move forward with self defense bolstered by the ability to impeach the victims to shreds. Still, it has to take into account the fact that Mr. Vassell brought a knife to a fist fight and drew it first. In the end, I'd be surprised if this went to trial because of uncertainty on both sides (unless it has become so blown up that one side or the other won't back down or the facts are even more anti-defendant than the motion lets on).

Apr 19, 2009

How Long Can a Judge Keep Someone Under Threat of Imprisonment?

As a comment on another post, Tony asks:

Maybe some one can help me understand something as follows. (1) Can a defendant be placed on probation for a term exceeding what the original sentence would have been,i.e. (2) in a class 1 misdemeanor can the defendant be put on probation for three years when the sentence is 12 months with 11 suspended for three years, with "indefinite" local probation? and (3) how long would the [indefinite] probation be, three years or 12 months?

[1]It's an interesting question and the waters are muddied by the fact that there are two separate things which occur under Virginia law, the period of probation and the period of the suspended sentence. As best I can define the two, the period of a suspended sentence is how long an offender can be hauled back into court to receive time "for any cause the court deems sufficient" (§ 19.2-306) and probation is the period of time the offender has someone specifically assigned to be her caretaker. Unfortunately, in both statutes and judicial decisions, there has been a loose usage of these terms. Sometimes they are used in parralell, sometimes they have separate meanings, and sometimes they seem to be used as synonyms. It confuses things.

[2] A defendant can have his sentence suspended for as long as the judge determines to be "a reasonable time, having due regard to the gravity of the offense." Va Code § 19.2-303.1. In other words, if the judge decides an offender's brandishing a firearm misdemeanor needs to have the sentence suspended for a period of 20 years, the judge can so order.

[3] Indefinite probation usually means that probation shall end at the discretion of the probation officer after certain conditions have been met. I couldn't find any limits to the length of probation, but logic would seem to indicate it could go no longer than the period during which the sentence is suspended.

[4] A common practice in Virginia courts is to usually limit most misdemeanors to a single year period of time suspended and in cases that the judge sees as more egregious three years of time suspended. I cannot find any statutory reason for this and suspect it may be ensconced in Virginia law via Smith v. Underwood, 1985, Va. App. No. 0316-85. In this decision a habeas was rejected because it was based upon new claims, but the court also accepted, without any discussion, 3 years time suspended on a misdemeanor.

[5] Furthermore, we find no ambiguity in the June 3, 1982, sentencing order that would support Smith's claim that the misdemeanor sentence suspension could not be revoked. Its terms are clear. Both the felony and misdemeanor sentences were suspended and Smith was placed on probation for a period of three years.

[6] Nevertheless, nothing in the statutes or any cases I've seen seems to limit the length of time a person can have his sentence suspended if the judge is specific about the length.

[7] If the judge is not specific about the length of time for the suspension it defaults to the length of the maximum potential sentence for the crime (ie: 1 year for petit larceny & 20 years for grand larceny). § 19.2-306. However, a judge can extend both probation and suspension. Under § 19.2-306(C), if a judge "finds good cause to believe that the defendant has violated the terms of suspension" the suspension is revoked and the sentence is imposed. However, the judge can resuspend the sentence - leaving him the option of setting a new length of time for the suspension. Under § 19.2-304, the judge can alter probation upon the convening of a hearing; as the statute states no other conditions, it appears that the judge has complete discretion in this.

Apr 14, 2009

Jury Today

Sorry folks, no post today. I'm off living the pilot for a new TV show:

Apr 13, 2009

Who Were the Colombine Kids Really?

"They weren't goths or loners.

They . . . weren't in the "Trenchcoat Mafia," disaffected videogamers who wore cowboy dusters. The killings ignited a national debate over bullying, but the record now shows Eric Harris and Dylan Klebold hadn't been bullied — in fact, they had bragged in diaries about picking on freshmen and "fags."

Their rampage put schools on alert for "enemies lists" made by troubled students, but the enemies on their list had graduated from Columbine a year earlier. Contrary to early reports, Harris and Klebold weren't on antidepressant medication and didn't target jocks, blacks or Christians, police now say, citing the killers' journals and witness accounts. That story about a student being shot in the head after she said she believed in God? Never happened, the FBI says now."

<much more>

Stare Decisis:
Where Should the First Thought Come From?

As long as statutes are written there will be two truths which require judicial decisions. First, there will be ambiguities written into the statutes/constitutions (textual ambiguity). Second, circumstances will arise which may, or may not, fall under a particular statute or constitutional clause (situational ambiguity). It follows that, if we are to be consistent, once a judicial decision has been made clearing up the difficulty this interpretation of the law should be universal and constant (so long as the decision is appropriate to the language of the pertinent statute/constitution¹).

[1] The best method of interpreting a statute is to use textual interpretation doctrines such as the Rule of Lenity (in criminal cases), expresio unius est exclusio alterius, noscitur a sociis, or ejusdem generis. This type of interpretation gives the most honest reading of a statute.

[2] In the few cases when the meaning of a statute/constitutional provision cannot be determined textually, historical meaning and legislative meaning analyses should be the next step. Historical meaning would look toward dictionaries or writings of a particular time to determine the meaning of the ambiguous word or phrase. Legislative meaning would primarily look toward other statutes with similar phrasing to clear up the ambiguous wording.

[3] If this fails, the next step is historical intent or legislative intent. This is the point at which interpretative tools become shaky. Historical intent is notorious because it's often one sided and/or incomplete. No one knows what every single member of the constitutional convention intended and it's unlikely that any historical analysis has proven what even a majority of them intended. Legislative intent suffers the same flaw; it's near impossible to prove what a majority of Congress thought about a statute passed as part of a two hundred page omnibus bill.

[4] In the very few cases which get through all the above, there's the appeal to other authority. In the past this might have been to the Great Thinkers: The Philosopher, Aquinas, Maimonides, Averroes, Hume, Kant, Locke, Burke &cetera. In modern times this is more likely to take the form of decisions by foreign courts. While both of these can shore up a decision, they are the shakiest form of interpretation. This is primarily because they do not have any anchors in the American legal system. We should always be suspicious that these sources are appealed to because American jurisprudence leans the other way and some source is needed to allow the judge to reach the conclusion he wants to reach. After all, how many people in modern times receive an education to the level that they even know who Averroes was, much less can quote his philosophy? And, why would an American judge know about an opinion published in Australia 7 years ago?²

Personally, I'd like to see a lot less appeal to authority in our courts. Beyond steps [1] and [2] above, it all looks like the judge has come to a decision and is just looking for justification. Assuming a previously unresolved ambiguity, it should be perfectly acceptable to state that ambiguity, state why the ambiguity cannot be cleared up by [1] and [2], and then set out the court's decision. If it is consistent with statute then good precedent has been set.<sup>3



1</sup> The great flaw of deference is when it reaches a near mystical level and is slavishly followed no matter how out of touch a decision may be with the actual language of a statute.

² The Australian Supreme Court could publish the most amazing, insightful, breath-takingly wonderful piece of reasoning on the right to free speech tomorrow and I might, MIGHT, find out about it because I get ABC's feed on my Twitter account. It's not exactly easy to research case law from another country.

³ Yes, I know this will never happen. Lawyers are mistaught from their first day in law school to over-cite, to always have a source. Original, uncopied thought is the bugaboo we are all taught to fear.

Apr 9, 2009

Interesting Question

Here's an interesting question which came up in court yesterday.

Under Brady v. Maryland et al, the prosecution is required to to turn over evidence which is exculpatory or impeachment material. However, what if there is no doubt the defendant did the crime (uncontested) and the defendant is trying to get evidence under Brady which would be used solely in an affirmative defense?

I did a quick bit of research yesterday and the cases clearly state that there is no obligation to turn over such evidence prior to a guilty plea. Still, that begs the question, is it constitutionally required at all? I never could find a case which specifed one way or the other.

Anybody know a case on point?

Addendum: For some unknown reason, Blogger isn't allowing me to put comments on this post. So, I thought I'd post them here.

ParatrooperJJ: In general, I agree that if it will not endanger third parties or other investigations (& any other such caveat which is slipping my mind at the moment), the prosecutor should share all evidence possible. However, consider a pro se defendant who is a felon caught with a firearm. He does not deny possession. Rather, he informs the court that he will be raising a duress/society made me do it/it's a dangerous world affirmative defense. In accord with his theory, he files for pretty much every record he thinks the county has related to violent crime over the last ten years (indictments, orders of conviction, copies of plea agreements, etc.). This is clearly outside of allowed discovery in Virginia, but the pro se argues it should be allowed under Brady. Judge won't go that far, but considers ordering 5 years of orders of convictions. (facts are made up out of whole cloth, but similar to case yesterday)

This doesn't impeach anybody or tend to prove he didn't possess the firearm. Should the government be obligated? If so, what is the constitutional basis and where do you draw the line?

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Anon: Yes, an affirmative defense is a defense. However, it's a "Yeah, but . . ." defense; a defense wherein the act the prosecutor is alleging is admitted. If there was anything tending to negate the act the prosecution would clearly be required to turn it over. However, nothing tending to prove an affirmative defense negates the act. Therefore, the question is whether the prosecution is required to turn over evidence which does not tend to disprove the act because the evidence may be consistant with an affirmative defense the defendant may present at trial.

A Shank We Can All Enjoy

Apr 8, 2009

What people are looking for when they come to CrimLaw

Click on the picture in order to be better able to read it. These search queries are a little different than I normally see. Usually the three things which get the biggest hits are methadone (because of pill pics I once uploaded), malicious wounding, and the Bluegrass Conspiracy.