04 August 2009

Action & Reaction: Virginia Altering Ethics Rules for Prosecutors

By changing constitutional law in Montejo, the federal supreme court fundamentally altered the realities of interrogations. In so doing, it left prosecutors in a precarious position. The generic ethical rule does not allow communication with a defendant once she has counsel. However, there are no longer any protections of the defendant until she announces that she will not talk without her lawyer present - irregardless of whether an attorney has been appointed/hired. Where does this leave the prosecutor? Is he disabled from doing what he can constitutionally by ethics obligations? What if an officer has heard about Montejo and asks if he can talk to a defendant who already has an attorney appointed? Are we supposed to mislead the officer as to what he's allowed to do because of the Bar's ethics rules?

The Virginia State Bar is stepping into the breach with a proposed change to the comment section of Rule 4.2: Communication With Persons Represented By Counsel

[5] In circumstances where applicable judicial precedent has approved investigative contacts in pre-indictment, noncustodial circumstances prior to attachment of the right to counsel, and they are not prohibited by any provision of the United States Constitution or the Virginia Constitution, they should be considered to be authorized by law within the meaning of the Rule. Similarly, communications in civil matters may be considered authorized by law if they have been approved by judicial precedent. This rule does not prohibit a lawyer from providing advice regarding the legality of an interrogation or the legality of other investigative conduct.

The second change to the comment is unambiguous. A prosecutor can advise officers as to the current limits of the law.

However, the first change is more problematic. It's very ambiguous. "Prior to the attachment of right to counsel" leaves open the question of when the right to counsel attaches. Per Montejo it would seem to attach at the moment the defendant asserts her right to counsel during questioning, whether or not counsel had previously been hired/appointed. However, during the initial pre-trial hearing the judge is supposed to determine what the defendant is going to do about an attorney, and appoint counsel to anyone who is indigent. A not insignificant argument can be made that this is when the right attaches (assuming the defendant has not demanded counsel during earlier questioning). Personally, I wouldn't mind the second interpretation too much. Since I can't be a witness, I really don't need to be talking to the defendant anyway. Still, the Bar should tighten that language up some.

29 July 2009

A Clean Desk is a Sign of a Sick Mind

My desk at the end of the day.
.

28 July 2009

What Really Happens after Defendants are Diverted from Jail

27 July 2009

Mitigation, Jury Sentencing, & Judicial Pronouncement

Under Virginia law, a defendant who has been found guilty of an offense by a jury is sentenced by a jury. During this hearing "the [prosecutor] may present any victim impact testimony pursuant to § 19.2-295.3 and shall present the defendant's prior criminal history" and "the defendant may introduce relevant, admissible evidence related to punishment." Va Code 19.2-295.1 & Virginia Supreme Court Rule 3A:17.1. In Shifflet v. Commonwealth, the Virginia Supreme Court defined "relevant" evidence as "[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime"; in doing so it rejected a "life story" and "testimony about [defendant's] employment, [defendant's] family responsibilities." Thus, the evidence which either side can introduce during a jury sentencing hearing is clearly defined. The reality is that in a great number of cases the only evidence introduced is the defendant's prior record and then both sides argue their case to the jury before it retires to decide.

Prior to the General Assembly adopting the bifurcated jury trial, all mitigation was the sole province of the judiciary. The courts walked away from 19.2-295.1's depiction of the jury's role as "ascertain[ing] punishment" or "agree[ing] on a punishment", instead declaring that:

If the jury finds that he is guilty, it then "ascertains" or "fixes" the maximum punishment in accordance with contemporary community values and within the limits established by law.
. . .
By vesting the trial court with discretionary authority to suspend or modify the sentence imposed by the jury, the legislature intended to leave the consideration of mitigating circumstances to the court.

Duncan v. Commonwealth, 1986, Va. App., No. 0274-85.

This interpretation of the law was immediately problematic in that there is absolutely nothing in the statute that states the jury is setting a "maximum punishment." Thus, Duncan does not follow the statute and invites us to lie every time we instruct a jury that they are going to determine the punishment.¹ Duncan's departure from the actual language of the statute is necessary because in all felonies class 4 and above there are sentences which a jury must impose that a judge could suspend (and usually would in part). This raises a constitutional denial of jury trial issue which had to be addressed. However, faced with the option of giving jurors the ability to impose the same sentencing incarceration ranges² as judges or develop a byzantine dual sentencing system, Virginia chose the latter.

Of course, in creating the bifurcated trial and allowing mitigating during the sentencing phase the General Assembly evinced an intent not to make the judge the sole mitigator. The question becomes exactly what role the jury's mitigation decision should play.

There is no provision under Virginia law for a judge to have witnesses and evidence introduced at a full-blown sentencing hearing and the statutory provision of a jury sentencing hearing and the basic canon of statutory interpretation expresio unius est exclusio alterus militates against one. In fact, under Virginia law the judge is only authorized to do one thing.

After a finding of guilty, sentence shall be pronounced, or decision to suspend the imposition of sentence shall be announced, without unreasonable delay.

However, he is also required to receive a presentence report before imposing the sentence. This report is to contain no less than "the defendant's criminal history, any history of substance abuse, any physical or health-related problems as may be pertinent, and any applicable sentencing guideline worksheets". More can be included, but the statute isn't clear as to what else is required. The judge shall "direct a probation officer of such court to thoroughly investigate and report upon the history of the accused." This has developed into a standardized format which has academic, job, military service, family histories, &cetera along with the minimum information required. These histories are a list of schools, list of jobs, notification of time spent in the military, and a list of family members. In addition to all this, a Victim Impact Statement is also required.

Via the presentence report the defendant is entitled to a sort of rump-sentencing hearing.

The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall . . . be given the right to cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter.

So, if the report states that the defendant has two children he could cross the probation officer about that and bring the mother of child three in to testify as to the child's existence, age, and relationship to the defendant.

Of note are three things. First, there is no provision for the prosecutor to dispute the contents of the presentence report and, except perhaps in cross examination of a witness the defense called, no role for the prosecutor in this hearing. Second, the defendant is not allowed impact witnesses. No crying fiance on the stand telling the judge how the defendant must be at home to support their three children. No mother telling the judge how this particular time in jail awaiting trial has finally cured the defendant of his percocet addiction. Third, any attorney arguments allowed would be limited to the content of the presentence report.

Once any conflicts in the presentence report are resolved, the judge is required to consider mitigation beyond what the jury has already decided.

Failure to consider whether a jury sentence should be mitigated because of a belief that the jury sentence is inviolable is an abuse of discretion.

Bruce v. Commonwealth, 1990, Va. App., No. 0504-88-2

Finally, "[b]efore pronouncing the sentence, the court shall inquire of the accused if he desires to make a statement and if he desires to advance any reason why judgment should not be pronounced against him." After any such statement (assuming he's not persuaded), the judge pronounces the sentence.

In conclusion, only a jury is allowed a sentencing hearing, with witnesses, evidence, and argument by opposing counsel. However, the evidence allowed is limited in scope and, despite the actual wording of the statute, is not the actual punishment of the defendant. On the other hand, the judge is given far more to consider in mitigation through the presentence report. Virginia law does not provide for a separate sentencing hearing in front of the judge although it does allow, at the defendant's behest, a hearing as to the facts in the presentence report. Once this is done the judge is required to consider further mitigation of the jury's sentence, give the defendant a chance to speak, and pronounce the defendant's actual sentence.



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¹ A truthful instruction would advise the jury that they were setting a maximum possible penalty which the judge could not exceed when the defendant was sentenced.

² The General Assembly could easily pass a statute stating that jurors shall not be informed of any minimum sentence except "mandatory minimum sentences" (which even judges cannot suspend) and that any time a jury sentences below the minimum time required by statute the remaining time shall be imposed solely as suspended time by the judge.

22 July 2009

A&B via Baby Kiss

Overheard in court (defense attorney arguing his adult/parent client - charged with battery - was acting in defense of child):

Prosecutor: "Your Honor, kissing is not a battery."

Defense Attorney: "Judge, kissing can be a battery. It's an unwanted touching . . ."

Judge: "Kissing a baby?"

Defense Attorney: "Judge, a kiss without permission . . ."

Judge: "Was the baby offended by the kiss?"

Defense Attorney: "Well, Judge . . ."

Judge: "Or are you saying it was a battery when she wiped the lipstick off?"

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I'm sure we can all predict where this ended.

Alliteration of the Day

"Judge, I don't know where that evidence came from. It was mighty convenient. It felt like it was planted, planned, and prepared just for this case."

19 July 2009

And Then Comes
Chief Justice Hassell

Last Thursday I went down to Abingdon with a couple folks from the office to get some CLE credits in the Solo and Small Firm CLE. Yes, I know it's not exactly a perfect match for prosecutors, but we don't get a lot of choices out here in the part of Virginia that's west of West Virginia and if you offer a free CLE I'm going to seriously consider going to it even if you are going to spend the day talking about the law of cartography as applied to international riparian rights.

Anyway, most of the CLE was okay. There was a gentleman who gave us an hour long speech about how important it is to maintain work-life balance which probably would have driven Scott nuts. We got a speech reminding people to make objections so that mistakes can actually be appealed (Virginia appellate courts are extremely unsympathetic if the trial attorney doesn't object). There was an ethics discussion which was mostly about when an attorney can contract under contingency; this was interesting primarily because a few of the older attorneys were going back and forth with the Bar expert about why they couldn't do X (which it seemed pretty clear that they had probably done at some point in their career). The worst part was the Tech For Solos section which can be summed up as "buy a more expensive, more powerful computer than you'll need and get all the expensive hardware and software to go with it." NOPE. WRONG. Epic fail. The high point of the CLE was the semi-lecture, semi-question and answer section by the Chief Justice of Virginia's Supreme Court, Leroy Hassell.

First, let me say that it's impressive that the Chief Justice would drive out here. It's probably a 5 hour drive to Abingdon from Richmond and he came down for an hour of face time with local lawyers. The Chief Justice has been controversial at times, and I've disagreed with mandates which were attributed to him, but the man has a presence to him when he speaks. It may say something about yours truly, but I watched him make his presentation and thought to myself, "It'd be really interesting to try a case against him."

Anyway, he announced that Virginia is going to start e-filing in NoVa and after it's perfected will be rolled out everywhere (I think it's also coming to some county out in far SWVa, but he didn't mention that). The crowd instantly started buzzing and questioning which basically boiled down to "Please, for the sake of all that is holy, please don't make it anything like the federal system and allow us to pay by debit card rather than having to set up accounts at every single courthouse." In response to a question, he announced the death of the judicial review program, which got no really noticeable reaction. One person asked a question about the law requiring that local rules not effect substantive rights of defendants (not really an issue out here, but in larger jurisdictions is a problem). The judge carefully evaded the question because there's a case pending, but said something to the effect of "I hear your concerns." Maybe the most interesting part was when some of the defense attorneys started asking about jury sentencing and the fact that juries don't get sentencing guidelines and can't go below minimum sentences like judges can (via suspended sentences). At first he was answering fairly openly, but then he closed down, deferring to the General Assembly as the part of the government which determines the sentencing regime. I think he was afraid that someone might write about it (not me, Peter Vieth, from Virginia Lawyer Weekly was there and did post about the Chief Justice: 1, 2). Then, having finished his hour with us, the Chief Justice left for his drive back to Richmond. I figure he probably got back about 5 p.m.

15 July 2009

Virginia: When can failed plea negotiations be used at trial

I'm in a sentencing hearing and the defendant keeps talking about the plea negotiations in an effort to get the judge to give her the time I'd offered rather than the time the guidelines called for. I object on the grounds that plea negotiations aren't supposed to be part of the trial and the judge asks me "Isn't that only in civil cases?" I'd never heard that before so I decided to do a little research to see what if/when plea negotiations can be used during a Virginian trial.

The basic rule is set out in Virginia Rule of the Supreme Court 3A:8(c)(5):

(c) Plea Agreement Procedure.

(5) Except as otherwise provided by law, evidence . . . of an offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing [] offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the [] offer.

This language clearly forecloses the use of statements made by a defendant during plea negotiations from being used in the prosecutor's case in chief. But see Hood v. Commonwealth, Va, 2005, No. 040774 (can be used to impeach, rebut, & cross examine) & Ayla v. Aggresive Towing, Va, 2008, No. 071451 (unwithdrawn plea may be used against 3d party witness). However, the language also seems purposefully ambiguous. It could be restricted to only defendants if only written slightly differently

(5) Except as otherwise provided by law, evidence . . . of an defendant's offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing [] offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the [] offer defendant.

The failure to denominate one party for whom the protection exists seems to indicate that this Rule was meant to apply to both sides, that "offer to plead guilty" simply means a plea offer proffered by either side, and that both sides are forbidden to talk about plea offers in their case at chief. There's no other explanation for not simply stating this is a protection for a defendant. As a practical matter, I'm not sure the prosecution would often need this protection during the defendant's case in chief.

So, the parameters discovered so far are (1) no discussion of statements made during failed plea negotiations during cases in chief, but they can be used for (2) impeachment, (3) cross examination, and (4) rebuttal. Still, that's only during the guilty/not guilty part of the trial. What about during sentencing hearings?

Well, 19.2-295.1 governs the jury sentencing hearing. Per the statute, the Commonwealth may introduce victim impact statements and shall introduce the defendant's prior record. Then "the defendant may introduce relevant, admissible evidence related to punishment." The prosecution has a pretty solid definition as to what it can introduce during its sentencing case in chief and it does not include statements made during failed plea negotiations. The question for the defense is basically, what is relevant? In Commonwealth v. Shifflet, Va., 1999, No. 90187, the Virginia Supreme Court explained relevant as follows:

The kind of evidence contemplated by § 19.2-295.1 bears upon the record of the defendant and the nature of his crime. Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime is admissible mitigating evidence.

It seems unlikely that a defendant would be able to fit a statement made by the prosecution during failed plea negotiations under either his record or the nature of his crime. However, 19.2-295.1 allows the prosecution to introduce "relevant, admissible evidence in rebuttal." Per this section of the statute, if the defendant got on the stand and testified "Bob" did it all any statements he made during plea negotiations which contradicted that would be available to rebut his statement.

However, a sentencing hearing held by a judge isn't covered by 19.2-295.1. In fact, I can't seem to find a statute authorizing an actual sentencing hearing by a judge. The only things which seem to exist are rules regarding presentence reports, a requirement of sentencing guidelines, and a requirement that the judge allow the defendant to make a statement before pronouncing the sentence. Despite this, the reality is that judges do have sentencing hearings, calling on both sides to provide evidence, whether they are authorized to do so or not.

It stands to reason that evidence introduced in a judicial sentencing hearing would be limited just as it is in a jury hearing. However, there's a second consideration when either the defendant or the prosecution tries to introduce statements from plea negotiations during a judicial sentencing hearing. Virginia Supreme Court Rule 3A:8(c)(1) authorizes plea negotiations, but also states

In any such discussions under this Rule, the court shall not participate.

As long as both sides stick to trying to convince the judge as to what an appropriate sentence would be, the hearing should be okay. However, the second the parties start talking about statements made during the plea negotiations they are effectively turning the judicial sentencing hearing into an extension of the plea negotiation in which the Court is forbidden to participate. It can be argued that even a regular judicial hearing would be an extension of the plea negotiation, just without open discussion of the failed plea negotiations. However, in that case all judicial sentencing hearings in which either side provided evidence would be invalid under 3A:8(1). It's logical, but it assumes that some sort of plea negotiation took place. In a hearing wherein one of the parties tries to introduce statements from plea negotiations there is no assumption.. In such a case I think the judge is required to stop the party as soon as he realizes what is going on and require the party to not discuss the plea negotiations in the hearing.

12 July 2009

Around the Blawgs: From Raising the Bar to Stupid Criminal Tricks on Facebook

1) Gideon appears to have turned his blawg into a Raising the Bar fansite.

2) Mark on whether legal "etics" can and will be trumped by other moral obligations.

3) Former Federal Prosecutor Syndrome.

4) Some days defense attorneys have good dealings with prosecutors and on other days, not so much.

5) If you go to a Wisconsin law school you don't have to take Wisconsin's Bar exam?

6) It's amazing how stupid people can be with Facebook.

7) How the blawgosphere has changed for the worse.

10 July 2009

At Least Buy Me Dinner First

It's a fairly nasty sentencing hearing. The defendant has a loooong record and is looking at years of incarceration. He is entirely unrepentant, argumentative with the judge, and absolutely cannot understand why he should get such a long sentence. "Judge, going to prison for 8 years before didn't accomplish anything. Sending me away for 5 won't either." (IKYN) Sobbing in the front row of the gallery are Defendant's mother and sister who both testified, through sobs, about how the last 6 months in jail have finally cured his heroin addiction, that he is a changed man, and that he needs to be out to help raise his 3 year old daughter. It was moving testimony but then the defendant took the stand, argued with the judge, and claimed that his previous attorney did not tell him that there was an offer for 2 years and 1 month and therefore, he now ought to be able to now take that sentence rather than the what the sentencing guidelines call for (funny, I remember spending an entire morning in court with his prior attorney shuttling between me and the defendant negotiating something. I thought it was my plea offer). Defendant's current attorney is getting blasted from all sides (including his client) and apparently decides it's time to take desperate measures.

It's an hour into the hearing and, honestly, we're all pretty much repeating ourselves at this time (when the defendant isn't interrupting me, the defense attorney, or the judge to tell us how we are wrong). I've stood up to make what I hope is my final argument and I'm about 7 minutes into it when I feel something touch me in the back. At first, I ignore it continuing my argument, then it runs up my back. I stop. Maybe the deputy is trying to get my attention? I turn to the right and the deputy is just standing there in his corner bailiffing. Then it moves down my back. I turn to my left and there behind me is the defense attorney and his finger is resting on my back.

"What are you doing?"

"Just trying to distract you and make you forget your argument."
.

06 July 2009

Metropolis v. Gotham: The CrimLaw Community

So, I'm flipping thru late night TV and I come across an animated Batman film and the last day or so the cable channels have been running that horrendous "Superman Returns" film. Anyway, it got me to thinking. Where would various members of the crimlaw community prefer to be, Metropolis or Gotham?

Criminals:

In Metropolis if you point a pistol and say "This is a . . ." a red and blue blur picks you up and deposits you at the nearest police station. You are entirely unharmed and locked up with the other 43 men whom Superman caught committing crimes during a 3.6 second patrol of the entire city. Violent crime is low in Metropolis because Superman is everywhere, all the time. When you go to court Superman comes as the star witness against you and you will be convicted. However, Metropolis has a merciful judicial system and the odds are that you will get probation with some sort of rehab program.

In Gotham the odds are that on any given day you will get away with your crime. After all, Batman can only be at one place at a time. Of course, if it is your day a maniac dressed in a Bat costume will descend upon you and take his time explaining in painstaking detail why you shouldn't be committing crimes in his city. Then he'll leave you tied to a light pole on a corner until the police show up to render medical aid and eventually arrest you. When you are brought into court in your wheelchair, you know Batman is not going to be there to testify against you. You probably won't get convicted. However, if you are Gotham's judicial system isn't going to waste any time on that namby-pamby rehab stuff; you'll consider it a good sentence as long as they don't send you to Arkham.

Police:

In Metropolis, life on most days is very good for the officers. You stroll down the street, flirt with the girl at the LexCorp coffee shop, write the odd traffic ticket, and every so often a red-blue blur drops off three guys who tried to rob a bank and you take them into the station. Generally, life is good. Then come the days when Darkseid or Mongul or Doomsday show up to try and take Superman out and you're getting disintegrated because you were the first to arrive on scene or you spend the day dodging trucks, cars, and buildings they are throwing at each other as you try to get civilians away from indestructible beings fighting each other in the middle of a major city.

In Gotham, it's a good day when no one you know gets killed. There's a nutcase vigilante bouncing around the city dressed like a bat and the Commissioner seems intent on coddling him instead of putting him away. Meanwhile, one homicidal maniac after another keeps coming to town - the Joker, Two Face, Scarecrow etc. - killing any officer who gets in his way (not to mention citizens) until the vigilante accepts the maniac's challenge and they fight. The "bad guy" gets captured, but that just means he'll escape from Arkham Asylum and be back out on the street next month doing it all again.

Defense Attorney:

In Metropolis you have to cross examine Superman. It's your job to sell the jury on Superman as an out of control vigilante who is lying on the stand about your client. You know, the guy with the nickname of "the Big Blue Boy Scout" who has probably either saved the life of every person on your jury or helped their grandmother get her cat out of a tree.

In Gotham you don't have to worry about Batman showing up at a trial. As long as you stay honest you'll probably never see the Batman. And the fact that you keep wheeling in clients with broken legs and arms, who had to get out of the hospital before they went to jail makes a wonderful case for police sanctioned, vigilante brutality. You'll win a lot of cases. Then comes the day when the judge assigns you to be the Joker's new court appointed attorney (after he killed the last six) . . .

Prosecutor:

In Metropolis convictions are guaranteed. What jury or judge is going to rule against Superman? The man who stands for Truth, Justice and the American Way? Of course, also following Superman's lead, the courts won't believe anyone beyond salvaging and while it'll be easy to have a 99.998% conviction rate, the odds are most of the time the defendant will get an extremely light sentence and be given the opportunity to rehab and become a productive member of society (despite his 12 prior convictions).

In Gotham, as a prosecutor you live with a police escort and 24 hour guard. The Police Commissioner is constantly on you because you can't convict most of the bad guys his pet vigilante mangles and leaves for the police. There's either no witnesses or, in the case of the splashy villains, plenty of witnesses but a defendant who is clearly NGRI and who ends up getting sent back to Arkham, which doesn't seem able to keep a church mouse from escaping. And even living with 24 hour police protection the bad guys can get to you - remember Harvey Dent.

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I leave the decision to you. Where would you rather be?

04 July 2009

A republic if you can keep it.

Mr. President

I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right — Il n'y a que moi qui a toujours raison."

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.

On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.

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Benjamin Franklin at the Constitutional Convention

01 July 2009

Changes the General Assembly Should Make Post Melendez-Diaz

Here are my suggested changes to Virginia's demand statute:

§ 19.2-187.1. Right to examine person performing analysis or involved in chain of custody.

The accused in any hearing or trial in which a certificate of analysis is may be admitted into evidence pursuant to § 19.2-187 or § 19.2-187.01 shall have the right to require the Commonwealth to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. If the accused does not notify the trial court and Commonwealth of the requirement prior to the trial date he waives his right to require the person's presence at trial.

Such witness shall be summoned by and appear at the cost of the Commonwealth. Unless waived by the Commonwealth, the Commonwealth shall have no less than 30 days from the date of notification by the accused to subpoena and bring the person to court.

I these changes would make the "demand" part of the close to bulletproof and keep the gamesmanship to a minimum.

29 June 2009

And the Beat Goes on . . .
Magruder (Now Briscoe) Granted Certiorari

So, now the US Supreme Court has decided to take a second opportunity to look at Notice/Demand statutes and the confrontation clause.

28 June 2009

Melendez-Diaz, Magruder, & Virginia

Having watched the continuing angst over Melendez-Diaz, I started asking around as to why everyone is so worried in light of Virginia's Magruder decision. The answer I got back from several people was "because Magruder is before the Supreme Court too." Of course, nobody seemed to know anything else, so I went looking.

After searching for "Magruder" and not finding anything, I came upon it when I searched for the other parties who had been consolidated in the appeal to the Virginia Supreme Court: Briscoe and Cypress (apparently Magruder must not have appealed his case to the federal supreme court).

Here's the timeline for the case to date:

May 29 2008 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 3, 2008)
Jun 10 2008 Order extending time to file response to petition to and including August 4, 2008.
Aug 1 2008 Brief of respondent Virginia in opposition filed.
Aug 14 2008 DISTRIBUTED for Conference of September 29, 2008.
Aug 14 2008 Reply of petitioners Mark A. Briscoe, and Sheldon Cypress filed. (Distributed)
Jun 25 2009 DISTRIBUTED for Conference of June 29, 2009.

This case has not been granted certiorari by the US Supreme Court (otherwise it would have a "Petition GRANTED" entry). It's still up in the air and at this moment the controlling case in Virginia remains Magruder.

Beyond this, I've had a couple of defense attorneys I know swear to me that the language in 19.2-187.1, "The accused . . . shall have the right to call the person performing such analysis . . . and examine him in the same manner as if he had been called as an adverse witness" shifts the burden to the defendant to bring the expert to trial and call him as the defense's witness.

The party which subpoeanaes the expert to trial is a red herring, since even if the defendant was required to subpoena the expert, subpoenaing is different from actually "calling" the witness at trial. We've all seen cases wherein people are subpoenaed yet never testify. Even so, there is nothing in the statute which requires the defendant to subpoena the expert. The last sentence of the statute is instructive here: "Such witness shall be summoned and appear at the cost of the Commonwealth." This appears to be a poorly written requirement that the Commonwealth summon and pay for the appearance of the expert. Even if one is not convinced by an initial reading, and thinks that the General Assembly had to instruct courts that criminal case subpoenaes are paid for by the State, it's commonsense that the way in which the Commonwealth would pay the "cost" would be for it to arrange the subpoena and any required expenses pretrial. Still, as I wrote previously, the statute really needs the General Assembly to go in and make some changes in order to foreclose any arguments.

I still think that, at least as long as Magruder stands, it will be nigh unto impossible for a defendant to even raise the burden shifting argument. I can't figure a way in which the defendant could get to the point at which he could raise the issue without the cooperation of the Commonwealth. Even assuming arguendo that the defense wasn't required to demand the prosecution produce the expert and was somehow able to subpoena the expert without the Commonwealth finding out before trial, he'd have to raise his objection when the prosecution went to introduce the certificate of analysis during the Commonwealth's case in chief. In order to fulfill the requirements of Magruder, the defendant would have to inform the trial court that he was being required to call the witness. Magruder requires the defendant to (1) "avail [himself] of the opportunity to require the presence of a particular forensic analyst at trial", and be (2) "in the position of being forced, over [his] objection, to call a forensic analyst as a witness). Any prosecutor with half a brain cell will then withdraw the certificate and call the expert himself as part of his case in chief, foreclosing the burden shifting argument.

As things stand, the Commonwealth's statutory plan is on solid footing. Now we just have to wait for word from the Mount about the fate of Magruder (Briscoe/Cypress).

26 June 2009

Does the Virginia Notice - Demand Scheme Impermissibly Shift the Burden of Proof?

The whole crimlaw world seems to be going mad in Virginia as people have read Melendez-Diaz and reacted with either glee or panic. No one seems to realize that the entire question has already been settled and the Virginia appellate courts have already found the Virginia notice-demand scheme to satisfy the confrontation clause. Calm down. There's nothing new here. For goodness sake, go read Magruder.

The only possible real issue with the statutory scheme is whether it shifts the burden to the defendant to provide evidence. The Virginia Supreme Court also addressed this in Magruder:

The defendants do, however, claim that the statutory procedure, by its terms, shifts the burden of producing evidence and requires a criminal defendant to call the forensic analyst in order to exercise his right to confront that witness. This argument is not cognizable under the Confrontation Clause. Instead, it raises due process concerns that are not properly before us in these appeals. Because the defendants did not avail themselves of the opportunity to require the presence of a particular forensic analyst at trial, they were never in the position of being forced, over their objection, to call a forensic analyst as a witness. In other words, no defendant said to the respective circuit court, "the forensic analyst is here to testify but the Commonwealth must first call the witness." Like the situation in Brooks, "the trial court never had occasion to address the proper order of proof."

In other words, the statute might unconstitutionally burden shift, but only if the prosecutor screws up can a defendant preserve the issue for appeal. In order to give the defendant grounds for an objection, the prosecutor would have to get the demand, bring the witness in, and then refuse to call the witness, thus forcing the defendant to call the witness. I've never seen a prosecutor do that. If the defense has demanded that the expert witness be there, why wouldn't the prosecutor use her as a weapon against the defense? So, while the particular set of circumstances needed for the the objection to even be made could happen, it seems rather unlikely. No objection = no error preserved = no appeal of whether the statute unconstitutionally shifts the burden of proof to the defendant.

Melendez-Diaz and Virginia Law

Yesterday, the federal supreme court rejected the use of certificates of analysis in trial, unless the defendant waives his right to have the actual person who did the analysis testify. It is an extension of Scalia's confrontation absolutism and has far reaching implications. Certificates have been used for a number of things: establishing DUI breath &/or blood levels, establishing that a substance is a drug, DNA, fingerprints, etc.

However, the court did allow one semi-exception to its rule: notice and demand regimes. Under these types of procedures, the prosecution gives notice of intent to use a certificate as proof and the defendant then has to demand the presence of the person who did the analysis or the defendant is deemed to have stipulated the content of the certificate as valid (waiving his right to confront). With this in mind, I went looking at the Virginia statutes governing this to see where we stand.

Under 19.2-187, as long as a certificate is filed with the clerk at least 7 days before trial it is admissible as evidence. Furthermore, upon filing the correct paperwork, the defense can require the court to send it a copy of the certificate at least 7 days prior to trial. 19.2-187.01 allows the certificate as proof of proper chain of custody. 19.2-187.02 allows blood reports taken at the hospital as evidence. 19.2-187.1 allows the defendant to demand that the person who did the analysis be present at trial (at prosecutor summons and cost) and gives the defense the right to "examine him in the same manner as if he had been called as an adverse witness."

Statutory Interpretation



One could wish that the statutory scheme was more tightly written, but it does appear that Virginia has a notice and demand structure in place. The notice is the required filing of the certificate of analysis no later than 7 days pretrial. Why else require a piece of the Commonwealth's evidence to be placed in the court file if not to give notice of the Commonwealth's intent to use it?



The demand part of the Virginia scheme is quite clear. The defense has an absolute right to demand the person who performed the analysis be present at trial under 19.2-187.1.

However, the language of 19.2-187.1 needs some serious reworking. It allows the defense "to call the person . . . as a witness therein, and examine him in the same manner as if he had been called as an adverse witness." While this does not impact notice and demand statutory scheme, it could give rise to burden-shifting arguments. The General Assembly needs to change that language to something like "to require the Commonwealth to call the person . . . as a witness therein" and it wouldn't hurt to drop the language after the comma (although it seems to just be a fancy way of saying "cross-examine"). As a practical matter, I've never seen a prosecutor not call the expert witness once the defendant has required the expert's presence and I think this may make any burden-shifting objection moot. Still, the statute needs fixing.


This statutory scheme was originally developed as a hearsay work around. It also presents the type of notice and demand regime required by the court to satisfy the Constitution's confrontation clause.

22 June 2009

CrimLaw Live

Topic: An outline of the Virginia Criminal Trial Process, from Magistrate thru Sentencing

17 June 2009

A Primer from the Virginia Supreme Court on the Invocation of Counsel

Every so often the Supreme Court of Virginia seems to adopt a theme across a couple of cases. An example of this was in 2007 when the Court took a couple cases on Obstruction of Justice and significantly altered what the crime of Obstruction is. This time the Court, in two decisions authored by Justice Lemons, has outlined the parameters of the assertion of the right to counsel under Miranda.

I've not had a recent argument which involved assertion of the right to counsel, so I can't claim to be up on the nuances of this area. However, my general impression has been that up to a couple years ago Virginia appellate courts were very hostile to Miranda and required a very clear, unequivocal invocation of the right to have counsel present during questioning. Then things seem to have begun to get mixed up and I recall reading a case or two that seemed to start backing away from the courts' prior position. This month's decisions seem to be the Supreme Court's attempt to remove as much ambiguity as possible.

The question in Zektaw v. Commonwealth (No. 081738), the Court was to decide whether "Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?" during a custodial interrogation is a clear, unambiguous and unequivocal invocation of the right to counsel recognizable as such to a reasonable police officer. The crux of the matter is whether "I'd really like to" expresses a preference or is an attempt to assert the right. Both the trial court and the court of appeals ruled that it was not an assertion. The Virginia Supreme Court disagreed.

The decision deals quickly with the preliminary matter of whether the defense counsel waived the objection to the introduction of the statement by asking questions about the statement on cross. The Court states that questioning during cross or introducing a rebuttal witness does not waive the objection. Only introducing new evidence of the same character waives the objection.

Then the decision gets to the meat of the matter. The Court goes through an exhaustive list of Virginia cases in which it has ruled upon possible assertions of the right to counsel; it bolsters this discussion with cases from the federal supreme court. Following this, it characterizes the statements which do not assert the right to counsel as follows:

1) An attempt to clarify the right - "Can I have an attorney here?"

2) Asking for someone else to be present, but not specifically asking for an attorney.

3) The defendant stating he might want an attorney.

4) The defendant questioning the wisdom of going forward without an attorney - "Maybe I shouldn't talk to you without my attorney."

After having gone through all of these, the Court decides that "I'd really like to talk to an attorney" doesn't fit under any of these and is an unambiguous assertion of the right.

While the statement may look somewhat ambiguous - after all, it's not an assertion such as "I'm taking the 5th" or "I will not talk to you without my lawyer" - the US supreme court had already set precedent in this when it found "Uh, yeah. I’d like to do that" (in reference to the right to counsel just explained) not to be ambiguous. Smith v. Illinois, (No. 84-5332).In fact, the Virginia Supreme Court could have made this an extremely short opinion: Per Smith v. Illinois this matter is reversed.

In the second case, Commonwealth v. Ferguson (No. 081645), the defendant was more savvy and put his assertion of the right to counsel a little more clearly: "Nah, I want a lawyer, you know what I’m saying?"

Despite the clear invocation of the right to counsel, Officer One continues to interrogate him without getting a response. Eventually, Officer One "concludes the interview", turns off the tape recorder, and leaves the defendant in the room with Officer Two. Officer Two sits in silence with the defendant and, after a few minutes, the defendant begins to talk to Officer Two and eventually, after Officer Two reads the defendant his Miranda rights again, the defendant makes incriminatory statements.

The Commonwealth asserts that these were two separate interviews and that the second one was initiated by the defendant. Thus, while the first interview was unconstitutional, the second was cleared of any tint because it was a conversation by choice of the defendant.

The Supreme Court rejects this interpretation of the situation:

Whatever the significance of Ferguson’s comments that broke the silence, they were the product of the coercive interrogation and environment created by police. Surely, police may not use the product of such techniques as proof of a voluntary reinitiation of communication and subsequent waiver of the right to counsel.
. . .
Under the totality of the circumstances, we hold that this encounter was one continuous custodial interrogation conducted in such a manner as to deliberately disregard a clear, unambiguous and unequivocal invocation of the right to counsel and coerce Ferguson to incriminate himself.

No bright line here; all of these cases are to be decided on totality of their facts.

15 June 2009

New CrimLaw Live! Tonite

Larceny under Virginia Law