19 August 2009

Virginia Cases of Interest

I was browsing through the Virginia Court of Appeals and these are the cases which caught my interest:

Brown v. Virginia, No. 1034-08-2 - A video is not subject to the best evidence rule and therefore an individual can testify as to what he saw by watching the tape and the tape need not be introduced. **In a footnote the Court of Appeals acknowledges that it is ruling contrary to federal understanding of this rule of evidence and the rule as applied in 42 States.**

Atkins v. Commonwealth, No. 1502-08-2 - An offender running away from officers and lying as to his name does not qualify as obstruction of justice under Virginia's statute.

Turner v. Commonwealth, No. 1836-07-1 - The Court of Appeals grants a Writ of Actual Innocence based upon a co-defendant taking all the blame after conviction of both. (I think this one is being redecided en banc)

Cooper v. Commonwealth, No. 1392-08-3 - If the Commonwealth gets a continuance because a necessary witness cannot currently testify in view of the fact she is awaiting trial herself it is not prejudicial to the defendant and therefore not an abuse of the trial judge's discretion.

Scott v. Commonwealth No. 1557-07-2 - Ohio found Scott guilty of violating his Virginia probation and sentenced him to serve 6 months of the suspended Virginia sentence in Ohio prison. After serving his time in Ohio, Scott was extradited to Virginia. The Virginia court found Scott guilty of violating his probation and gave him two years. Scott appeals, stating that he'd already been punished for violating his probation by Ohio. The Court of Appeals points out that Ohio didn't have any right to do such a thing and upholds the Virginia sentencing.

Jones, Jr. v. Commonwealth, No. 1802-08-1 - Updates and follows Shiflett.

Wilson v. Commonwealth, No. 1775-08-2 - Elaboration on the ability of a judge to alter a sentence under 19.2-303.

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The last two are cases I'm probably going to post more extensively about - hopefully next week. Wilson in particular interests me. I usually think that Judge Humphreys' opinions are among the best our appellate court puts out, but a quick read of this one bothers me. I'll have to digest it for a bit and post my thoughts later.

18 August 2009

Another Blawg Down

And now HOWT is gone too.

17 August 2009

The Power of Power of Attorney

Can a defendant empower someone to be his attorney thru a power of?

Ask Blonde Justice

Finding Other Law Grads Gainfully Employed

So, I'm puttering around the web trying to find something worth blawging about. The federal supreme court isn't going to be putting out anything interesting for a while. The most interesting case that the Virginia court of appeals decided last week can be boiled down to one phrase: No matter how poor the case against you was and the number of errors made you don't get to appeal if you don't object and make the appropriate motions to strike the evidence. Nothing earth shattering there; the court of appeals has probably said as much 100 times. One of the guys in my office wants me to write about Virginia Supreme Court Rule 7C:5(f), but I just can't see too many of ya'll being interested in the vagaries of misdemeanor discovery rules in Virginia. Besides, if I research and write that post I either have to take the side of a person in my office whom I know reads this blawg or a judge whom I know reads this blawg.

Then I trip across an entry in the VLW blog which points to a law classmate (Chuck James) of mine's involvement in defending a sheriff who is being prosecuted by the federal government. Chuck is quoted as making the dreaded "green beans with spaghetti" argument. For the record, I agree with Chuck that they don't go together, but I must admit that didn't stop my high school from serving such a travesty against the gods of taste (actually, it was usually worse: lima beans and canned spaghetti). Still, the rejoinder made by the federal prosecutor has a pretty nasty flaw: "If you’re trying to get youngsters to eat green vegetables spaghetti and green beans DO go together."

Wait. Wait a sec . . . Did he just say "If you're trying to convict on weak charges they should be mixed with the strong ones so the jury will just convict on everything"? Arrrggg. That's got to be a statement he wished he could have back. A better prosecutorial argument (if we must stick to a pasta theme) would have been: "What we have here, judge, is a spaghetti dinner. There are no green beans here. What the defense is trying to do is separate the pasta, and the sauce, and the meatballs, and the parmesan cheese. He's trying to make it unrecognizable for the dinner it is."

Of course, Tom Bondurant was in court commenting off-the-cuff on an argument he had just heard. I'm sitting comfortably in my kitchen drinking a diet pepsi as I compose my answer. Were my circumstances switched with the top-dog federal criminal prosecutor in the Western District, I'm not certain I'd have done better (and he'd probably be real confused as to why he was in my kitchen).

Anyway, for those of you who don't know him, Chuck is the first gentleman in this pack of lawyers walking into the courthouse.



It's a terrible picture; here's the news video it came from.

Anyway, it's good to see someone from my class involved in an interesting case. Since I'm now on the side of the angels, I cannot wish him good luck at trial, but I doubt he needs my luck behind him anyway. :-0

16 August 2009

Around the Blawgs

1) Skelly is gone. :`(

2) And so is Feddie.

3) Scott's still baiting lawprofs, making fun of marketers, and telling them dang worthless kids to get off his lawn and go work for a living.

4) Mark is slowly unfolding his "How to treat a jury" exposition.

5) How loud do you have to yawn to be found in contempt?

6) You're liable if you call the police during a robbery and someone is killed in the ensuing shootout?

7) I'm not sure that allowing 18 year olds to drink will discourage "binge" drinking - especially since "binge" drinking has been redefined by prohibitionists from a multi-day bender to a fairly normal 5 drinks (4 if you're female) - but here's an interesting post about whether the federal blackmail requiring the drinking age to be 21 might be unconstitutional.

8) Windy wants you to support a Feminazi scumbag.

9) Who needs permission for a DUI blood test? In Kentucky you just wait until they're asleep . . .

10) Yep, California, the land that pioneered marijuana hang-nail therapy. (You know it's bad when NPR is calling them out)

13 August 2009

Joe Friday on the Drug War

11 August 2009

Prosecution Argument at Sentencing

In Virginia after a defendant is found guilty of a crime there is a jury sentencing hearing and, of course, argument from both sides as to what the appropriate sentence should be. Here's my sentencing argument from my jury last Friday.

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Thank you, Judge.

Ladies and gentlemen, there are generally four reasons we put somebody in prison or jail. The first is what everybody calls retribution, basically just punishment. The second is to keep them away from people, to keep them from being able to do anything. The third is to teach the lesson to other people; they see what happened to somebody and they don't do it themselves. The fourth is rehabilitation. I'd ask you to keep all these in mind when you go in the back and try to decide all this.

Now I'm going to tell you, I don't know what this ten months in Texas was. The conviction records I'm handing up to you are all from Virginia. As the defendant himself testified, apparently if you commit a felony in Texas and you do something right, they take it off your record. I don't know how that works; I'm a lawyer in Virginia, not Texas, but apparently he spent ten months in jail in Texas. So, I don't think, to be honest with you, that rehabilitation is going to happen. You may disagree with me on that and that's you privilege. I really don't think going to jail or prison is going to rehabilitate him.

So, the questions then come down to, if you're a person who believes in straight punishment,what punishment's appropriate. And you should weigh what both Dad and Step-Mom have said. And you should also weigh the fact that he's been to jail for ten months in Texas and then came up here and did this. So ten months didn't stop him. So, you weigh his prior record and everything in and you might think how much punishment he's due.

Stopping him from doing something like this again. Well, obviously as long as he's in jail or prison he's not going to be doing this again. How long he needs to be away to accomplish that, again I leave to you.

The last thing, of course, is setting an example for others. You know, a lot of people believe in standing up here and banging on the table and saying "Send a message! Send a message!" Well, I'm not going to feed you that line, because this is a family thing. Now, whatever happened in Texas or his drug possession charges, those might have been send a message charges. This is family and as much as I think he needs a stiff sentence, his family has asked for less.

I think, and I've tried any number of juries in my career, I think personally that finding guilt or innocence is the easier part of the trial. Setting an appropriate sentence is incredibly difficult and I don't know if we ever get it 100% right. Like I said, my thoughts would be to ask you for a lot of time. 10 months didn't work; my thoughts would be to ask for more than that. His parents, his father and step mother have asked you for less than that. Balance all that in, ladies and gentlemen.

There are different ways that different people think punishment should be set. I've heard people stand up and say that for every $100 stolen a month should be given in jail - that would be 15 months in this case. I probably would have asked for, in this case, two years, but that's another issue.

I just ask you to take serious thought as to what good you are going to do the community through this sentence and please do your best with it. Thank you.

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As you might be able to tell, we don't get the over night break that the prosecutors in Law and Order always seem to get in order to put their arguments in proper order. It's pretty much extemporaneous exposition and every time I read one of my arguments I see errors, things I forgot, and things that don't make sense when you just read them. Still, at least when I was in the moment the argument seemed to be flowing well and connecting with the jury (although, for all I know, they may have thought me an idiot and ignored everything I said in their deliberations).
.

10 August 2009

Sometimes You Look Back & Realize What a Snit You Were Being

There are times you look back at your behaviour and feel like kicking yourself.

Jury on Friday was credit card theft with Defendant stealing from Dad & Step-Mom. Defense Counsel wants Dad to testify during the sentencing phase of the jury trial, because he knows Dad is a reluctant witness who doesn't really want his son to go to jail. However, under Virginia case law Defense Counsel is clearly not allowed to present evidence of anything other than that which lessens his prior record or diminishes, but does not negate culpability for the current crime. Family wishes and effect on the family are clearly not allowed. See Shifflet and (last month) Jones Jr.. We argue back and forth on this with me pointing to the rule set out in the cases and Defense Counsel trying to play the precedent down by claiming the decisions just said the judge hadn't abused his discretion so the judge didn't have to follow the precedent. At one point the judge said something off the cuff about "Isn't family continuity one of the goals of Virginia law?" Anyway, after a while the argument shifted and Defense Counsel started arguing that he didn't want to call Dad because he was family, but because he was the victim. I point out that the statute only authorizes the prosecution to introduce victim evidence during the sentencing, thus excluding the defendant from doing so. In the end, the judge allows Defense Counsel to call Dad, "just to ask him what he thinks an appropriate sentence would be."

Faced with that, I introduce the defendant's prior convictions and the call Step-Mom to the stand. Defense Counsel objects and we go up to the bench to argue the point where the jury cannot hear us. Now, I've got a clear statutory allowance to "present any victim impact testimony" and she's as hooked into the checking account as her husband. I can just stand there and point at the statute and I should win the argument. Is that what I did?. Nope. When Defense Counsel objects because Dad's name is on the checking account, not Step-Mom's, I let out, "Judge, I thought we in family harmony mode, kumbyaland . . ." At which point Defense Counsel bows to my keen legal argument and withdraws his objection.

09 August 2009

Cross Examination: Convicted in Texas, but Apparently not Virginia

On Friday, I was cross examining the defendant in a case and asked him about his felony record:

Q: Have you been convicted of a felony in Virginia?

A: No. not in Virginia . . .

Q: Well, have you been convicted of a felony in another State?

A: I don't know how to answer that question. According to that piece of paper, I haven't. I don't know what to say.

Q: You're under oath. You're supposed to tell the truth.

A: Well, I was convicted in Texas, but that was supposed to go away.
.

Q: So, you were convicted of a felony in Texas?

A: Yes, but after I spent my time in jail it was supposed to go away.

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.
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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?