08 September 2009

Post Melendez-Diaz Changes in Virginia Law

Things seem to have settled down in Virginia post-Melendez-Diaz.

Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.

Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.

1) 28 Days - or more - Prior to Trial: A copy of the certificate, along with an explanation of Defendant's right to object and require presence of the person who performed the test to be present in court, must be sent both to Defendant (or counsel) and the Clerk.

2) 14 Days after Certificate Delivered: Defendant's right to have tester present is waived if Commonwealth not notified prior to this date.

3) Prior to Trial: Defendant must raise any claims not to have received timely notice from the Commonwealth prior to trial. The Commonwealth's proof of provision shall be prima facie evidence that it was delivered on that date.

4) If the Trial Court finds that notice was not timely given or that the Commonwealth, after exercising due diligence, cannot have the tester in court on the trial date, shall continue the case.

5) Continuances: Up to 90 days "if the accused has been held continuously in custody." Up to 120 days "if the accused has not been held continuously in custody." No continuance pursuant to this section shall count against Virginia's speedy trial statute.

6) Preliminary Hearings: None of this is required to use a certificate in a preliminary hearing.

Issues:

1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.

2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.

3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?

Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.

07 September 2009

The Apple Store Smash & Grab

02 September 2009

Seen at Court

Defendant and Attorney are standing 2 feet in front of the judicial bench. Attorney has just had a bond hearing at defendant's request. Defendant told the judge she should lower the bond because "I've had the same bond for 8 months and my family hasn't been able to pay it."

After the judge shoots that down, Defendant starts insisting that he be allowed to plead guilty right now because he has to get out out today. Attorney tries to calm him down; tries to pull him aside to talk; tries to get him to stop talking; tries to make him realize that he has a plea date set for next week when Attorney expects to have a plea offer. He isn't having any of it and keeps insisting that he wants to plead guilty today! The judge tells him that she'll be happy to let him plead guilty and set a sentencing hearing for three months down the line. It doesn't seem to penetrate the head of Defendant that this will probably keep him in jail longer.

Finally, Attorney turns to Defendant and says, "You can do this against my advise. You shouldn't, but you can. I'm going to walk out of the front door of the courthouse either way. You still insist on pleading today?"

And, you know what? It worked. The guy finally came to his senses and decided to wait until next week.

01 September 2009

Carroll Doctrine

Last week I got asked to research an interesting question about the limitations which the Gant decision might have upon the Carroll Doctrine. It didn't seem to have any, but it raised my interest.

The Carroll Doctrine came out of a case : Carroll v. U.S., 1924 (267 U.S. 132). A prohibition era case, Carroll is the case which creates the constitutional difference between searches of dwellings and vehicles. After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can't just stop any vehicle he wants to.

The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops has contraband [] therein which is being illegally transported.

To sum it up, Carroll allows LEO's with probable cause to search an entire vehicle because of the mobility of the vehicle and the difficulty of obtaining a warrant in a timely manner.

I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let's consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain't going to work.

Consider a case wherein the local sheriff's department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he's never going to agree to a consent search. There's no cell service anywhere near and the mountain next to the road isn't letting any radio waves get through.

Deputy Smith is faced with a number of bad choices. If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.

In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO's to easily get search warrants. If a smuggler is stopped at a port in Miami or driving through New York City local LEO's probably shouldn't be able to rely on Carroll. On the other hand, in a rural county in Nebraska where there are two deputies on duty and the judge comes by once a week, Carroll may be a necessity if there is to be a realistic possibility of actually enforcing the law.

[addendum] Apprently, my reading of Carroll was too restrictive. Via Commonwealth v. Grimes, I see that the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it.

28 August 2009

Liberal= Get Tough on Crime Instead of Get Tougher

25 August 2009

III: Limitations on the Ability of a Judge to Alter a Sentence

In Virginia § 19.2-303 gives a judge certain abilities to suspend a felony sentence:

If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.

I've discussed this twice before here and here.

Last week, in Wilson v. Virginia, the Virginia Court of Appeals addressed - yet again - the jurisdiction of trial courts under this statute. Apparently, after all the evidence had been given in the hearing the trial judge, at the defense attorney's prompting, ruled that she did not have jurisdiction to alter the defendant's sentence. The Court of Appeals makes short shrift of this restating "§ 19.2-303 gives trial courts jurisdiction over all felony convictions provided the defendant has not been sent to the Department of Corrections."

A win for the defense? Sort of. As the hearing had already been held before the judge rendered her ruling, the Court of Appeals had an entire record before it upon which to decide whether or not the case should be returned to the trial court for further consideration. Therefore, the Court of Appeals moves forward with a harmless error analysis.

Circumstances in Mitigation

The Court zeroed in on one part of the statute: "circumstances in mitigation of the offense" (something I'd previously said I didn't think would happen - see comments here). However, it's not the most satisfying analysis. The discussing paragraphs meander back and forth in their description of "mitigating circumstances." When the Court discusses Virginia law it has a fairly restrictive interpretation. It quotes Shiflett, defining mitigating circumstances as

[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the crime.

It then discusses § 19.2-264.4, stating

The "facts in mitigation" identified by the General Assembly share a common thread in that, while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed and may be relevant in sentencing.

This tracks with my previous assertion that mitigation of the offense actually has to be related to the offense.

However, the Court also adds in some ambiguity. Directly after it quotes Shiflett, the Court quotes Black and defines mitigating circumstances without any reference to the offense

a fact or situation that does not bear on the question of the defendant’s guilt, but that is considered by the court in imposing punishment

The Court ends the paragraph with more ambiguity as to exactly what mitigating circumstances are

Put succinctly, the term "facts in mitigation" has no bearing on the actual guilt or innocence of the accused but rather relates only to the degree to which punishment is appropriate.

Nevertheless, I don't think the ambiguity is enough to mask that the Court is stating (collaterally) that Virginia law requires the mitigation to be "of the offense", not "of the sentence." I only wish the Court had been more clear on this point.

Why wasn't it? Well, maybe because the Court wasn't worrying about my concerns over this statute. It was trying to define "mitigation of the offense" in this statute so that it does not include "absolution of guilt / nullification of conviction." I'd previously stated that I thought the purpose of this statute was to allow the judge to consider both perfect and imperfect defenses beyond the trial courts 21 day retention of jurisdiction post-trial, allowing the judge to suspend part or all of a sentence. The Court's interpretation takes perfect defenses off the table. If, 22 days after the trial, the lab realizes it mixed the DNA, or the police realize they got the wrong guy, or the defendant admits to making it all up, the defendant has no relief short of appeal, habeas, or writ of actual innocence. The defendant could spend months, maybe a year+ (or longer, depending on how quickly the courts worked), incarcerated despite knowledge of innocence 22 days after trial.¹ As you might surmise from my reaction above, I'm not a fan of the possible result of this decision. I'm particularly irked by the use of the creation of a statute in 2004 (the writ of actual innocence) to interpret the meaning of a statute passed in 1975 (19.2-303). However, I'm not going to get into a legislative intent argument. If the Court wants to proclaim that the General Assembly intends to keep innocents incarcerated until they can jump through all the hoops of a habeas or writ it can stake that position out all for itself.

I can't even get there textually. Mitigation is defined by Webster as "1: to cause to become less harsh or hostile; 2: to make less severe or painful." Mitigation isn't as specific as absolve or nullify, but it is a word which has the breadth to incorporate both. If guilt is absolved or nullified it definitely lessens the harshness and severity of the defendant's involvement in the offense.

Oh well, in a disagreement between myself and Judge Humphreys over the interpretation of a statute I suspect his actual legal decision will carry the day over my sniping from the sidelines.

Here's where I now understand the rule to be for this section of § 19.2-303: A defendant can only get relief if she presents evidence which mitigates the offense, but does not tend to prove the defendant not guilty. The evidence presented may only lessen the offender's moral culpability and may only address her prior record or the circumstances of the offense.


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¹ Yes, I know that there are probably not quite legitimate means by which a creative trial court could fudge and nullify the conviction, but what if the judge is a scrupulously honest man who won't act against the letter of the law?

24 August 2009

Virginia Jury Sentencing: Elaborations on the Limits of Defense Evidence

You'll recall that a while back I discussed what the Virginia courts had determined to be relevant evidence a defendant can introduce during a non-capital jury sentencing hearing.

"Evidence 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."

This came from the Virginia Supreme Court in Shifflett v. Commonwealth and in the last month and a half the Virginia Court of Appeals has elaborated upon this both directly and indirectly.

Harkening back to Shiflett, in Jones Jr v. Commonwealth, the Court further explores the adoption of the same standard for the introduction of evidence in non-capital jury sentencing hearings as allowed in capital hearings. It lists other evidence which has been rejected: (1) sentence of codefendant; (2) impact of incarceration on defendant mental state; (3) defendant's wife's illness and dependence upon him; (4) impact on family; (5) impact on employment; & (6) family history.¹ The Court adopts § 19.2-264.4(B) and judges the relevance of the evidence through the purposes of punishment: "deterrence, incapacitation, rehabilitation and retribution." In rejecting the appellant's argument it states the acceptable evidence which can be introduced during jury sentencing: (1) circumstances surrounding the offense; (2) history and background of the offender; (3) circumstances tending to explain the offense; (4) criminal record; (5) mental condition; (6) age of the offender; & (7) any other factor in mitigation of the offense.

Of course, the last factor is open ended. Fortunately, just last week the Court of Appeals addressed this in Wilson v. Commonwealth (a decision discussing the limits on a judges's ability to suspend a sentence under 19.2-303). Discussing § 19.2-264.4 the Court states that the "common thread" of the "facts in mitigation" is that "while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed."

So, a defendant cannot introduce extraneous evidence (family, job, &cetera) or evidence which impacts legal culpability.² Only factors which weigh on the morality of the defendant's role in the illegal act are allowed.³


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¹ The Court also cites Pierce v. Commonwealth as finding "testimony that defendant was a "good upstanding citizen" and a "loyal and loving son" relevant", however Pierce had nothing to do with the relevance of that evidence. It found that a defendant can present evidence during a sentencing hearing even if the prosecution has not. Even had it ruled that evidence relevant, Pierce was a Court of Appeals case decided 3 years before the Supreme Court's Shiflett and would seem to have been overruled.

² There is at least one exception to this. Accomodation lessens legal culpability for drug distribution in Virginia and it is supposed to be argued in the jury sentencing phase.

³ Defense evidence pertaining to the defendant's record is also allowed, per Shiflett. This may relate to the morality of the offender's participation in the offense or may simply be allowed as rebuttal to the prosecution's introduction of defendant's prior record.
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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).
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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.