30 November 2009

Is it Intrinsically Noble to stand between the Reviled and society?

No.

BUT, that doesn't make a defense attorney's job any less noble.

Let's be clear here, we're not talking about people charged with something he didn't do; representing that person is clearly noble. We're not talking about someone overcharged or in danger of being over-punished; representing that person is noble. Nor are we talking about representing the immature, the mentally ill, a person who steals to eat. It is clear that standing between society and these people is intrinsically noble.

What we're talking about here is a Reviled One. Picture the most deservedly hated person you can think of. This is the person we're talking about (someone like the BTK killer, a 9/11 terrorist, the guy who ambushed and killed the four officers yesterday). He is a member of the small group of deservedly reviled and there is nothing intrinsically honorable or or noble in protecting him from society.

And yet, the defense attorney who takes that job and does the absolute best he can in defense of that person is noble.

Why?

(1) Because these cases are the ones which pose the greatest danger to society. If there isn't someone out there fighting tooth and nail for Reviled One these cases will inevitably end up with losses of rights and protections. These are the cases wherein everyone is going to cut corners, ignore rights, and crush protections in order to get to vengeance as quickly as possible. Someone has to stand in front of that bulldozer and frustrate its destruction of the rights and protections of all on the way to destroy the Reviled One.

(2) Because there is no way that society can be just if the Reviled One doesn't have the ability to access, understand, and properly avail himself of all the societal protections. A defendant cannot really represent himself well in court. Even if he is bright, he isn't experienced. Legal research is fairly arcane and even if he has access to a decent law library in the jail (unlikely) he is almost assuredly going to miss important things. He doesn't know written court rules. He definitely doesn't know the unwritten rules of practice, which vary depending on State, region, courthouse, and judge. Without an attorney even the brightest, most capable person is not going to receive a fair trial. By giving Reviled One all the access to laws, rules, procedures, and protections he should have the defense attorney provides an honorable and noble service.

Defense attorneys do serve justice. One could even say that they "seek justice" just as much as any prosecutor does. And I now say it. Defense attorneys seek justice. It's not the straight forward justice that prosecutors enjoy. It's a more esoteric form. Defense attorneys advocate for short term injustice and in the process they assure societal justice in the longer term. That's either seeking justice or having it occur as an unintended, collateral consequence. Forgive me if I'm a bit of an idealist, but I choose to believe that defense attorneys are seeking overall justice, not just providing it by accident.
.

28 November 2009

Need a Job?
Go See Brian Patton

I was messing around with my LinkedIn page and listening to the UK/Tenn. game when I tripped over the ad for Russell County Commonwealth Attorney's Office hiring a new Assistant Commonwealth Attorney.

Admittedly, I don't know much about Russell County It's SE of the county I work in), but I've met Brian Patton (the Commonwealth Attorney getting sworn in to the left) and he seems to be a good guy. If you like living near the mountains and are looking for an interesting opportunity (and have a Virginia Bar card) you might consider looking into it.

25 November 2009

The Blind Side

5 second review: Feel good film, but not deep.

30 second review: Homeless black teenager gets into a private school because he's athletic and is adopted by a rich white family which finds him wandering the street after school.

In depth: This is based upon a true story, but you get the feeling it was loosely based (See RD version & NYTimes). Once upon a time this would have been an after school special and now it's the kind of fare you'd expect to find on Lifetime. The only thing which raises it above this level is the performances of the actors and Sandra Bullock. The story would have been much edgier, and probably better, if it had been presented from the black kid's point of view. Instead it switches back and forth between a 3d party point of view to the white mother's.

The first part of the movie shows how Michael Oher gets into a private, Christian school almost by accident. The only reason he even gets to the school is because he is spending nights at the house of a family whose father promised his mother that he would send her grandson into a Christian school. Oher is just brought along and it's made pretty clear that he gets in, despite not being even slightly academically qualified, because he is extremely large and athletically gifted.

Then we are shown how Oher is living on the street, even as he goes to this rich, private school. It's not exactly subtle. We see him gathering popcorn after a basketball game to eat and washing his single extra t-shirt in a 24 hour laundromat (and sneaking his shirt in with someone else's dryer). We also see that one teacher taking interest in him and discovering that he's not dumb, he's just never been taught.

Next we see the mother of the Tuohy family taking him in and the family, pushed by mama, rallying around him and pushing him forward so that he can play football and develop learning skills in order to raise his grades and allow him to go to college on a football scholarship. There are scenes in here which deal with issues such as trusting someone from the poor side of town to live in your house, worrying about that the relationship between Michael and Collins (the Tuohy's daughter of approximately the same age), and Mrs. Tuohy dealing with friends who can't understand how she can have a black kid living at her house. However, all of these are fairly short; there's no in depth treatment of any of them.

Finally, there's a conflict at the end when the NCAA basically accuses the Tuohy's of taking Michael in just so they could channel him toward their beloved alma mater Ole Miss. There's no doubt that they pushed him in that direction, and it starts some trouble and soul searching. Nevertheless, in the end everybody is happy and all is happy as we are treated to the touching scene of the Tuohy's dropping Michael Oher off at Ole Miss.

The movie glosses over some things (such as "the great Mormon grade grab" - blame the NYT for that characterization, not me), and switches others around (Mrs. Tuohy didn't come out of the stands to help Michael learn to play, she came out to help the coaches when Michael wouldn't let them look at an injury), but it generally seems to be true to what Michael Lewis wrote in his article and book about Oher. There are two things which stand out as different. First, Mr. Tuohy is downplayed in the movie. He plays a role, but it seems less vital than that reflected in the writing. Second, Michael Oher is basically treated as though he is dumb (cannot speak). The articles seem to indicate that he was reluctant to speak about things that were embarrassing or painful, but that he was talkative at other times - particularly in his senior year. I don't know who chose to make Michael Oher have the personality of a quiet 2 yer old, but I suspect he is doing Oher a disservice.

I'm not sure that this movie makes it onto the screen if it had been about a rich white family taking in a homeless white kid from the trailer park or an affluent black family taking in a black kid and channeling him to Morehouse. Let's face it, we all know the hook is that this is a "we can all get along", kumbaya film. As such it does a good job. It could have avoided a lot of the criticisms and complaints which will be made abut it if it had been about people all with the same skin color, but then it wouldn't be true. (or at least as true as Hollywood ever gets).

Best line: Who knew we'd have a black son before we had a Democrat for a friend?

22 November 2009

Anatomy of a Righteous Shoot

I'm visiting with my folks in Cincinnati when the morning programs are interrupted and the chief of police and mayor come on to do a press release about a shooting which had occurred the day before. This guy has misdemeanor warrants and decided that he was going to grab his pistol, run and shoot it out.

This is an abridged version (after an advertisement).



One interesting thing is that immediately after the shooting the officer in the camera puts his pistol on the ground. I'm not sure why he did that. He did not know he was on camera (the second video is from the store, not a police vehicle).

19 November 2009

Lawyers Needed in London (Kentucky that is)

As part of my vacation I've been running around getting pictures of some of the local courthouses in Kentucky. Most of them I got on my way North (before it started raining). However, I was driving back to Virginia this morning I stopped in London, Kentucky to get gas. I figured the local courthouse wasn't too far away and thought I could spare a half hour or so to go grab some pictures.

I asked the lady at the counter of the stop and steal where the local courthouse was and she called the delivery guy over to give me directions. After I get directions they're both standing there pointedly not asking me why I need to know. The conversation then proceeded like this:

Me: Don't worry. I'm not trouble. I'm an attorney from Virginia and I'm taking pictures of courthouses while I'm on vacation.

Lady: You know, we need more good lawyers here in London.

Me: I know Virginia law. Kentucky law, not so much.

Lady: You need to learn some and move down here.

Unfortunately, I think I'm going to have to disappoint the lady. No reciprocity and an abiding desire not to take another Bar examine ever again are almost insurmountable obstacles.

17 November 2009

Ordinary Injustice

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate this book a 3. It's worth a read for those involved in the criminal justice system.

This review of Ordinary Injustice is coming later than most. I think this is partly due to being asked to review it later than others. However, a greater part is my reaction to the book made it difficult for me to write the review.

The theme of the book is that injustice becomes part of the system not so much from a desire to do evil, but from improper acts by various actors which are not checked by other actors in the system. It's a theme which I agree with. She implies that it is a pervasive state throughout criminal justice systems in the US. This I also agree with. Every jurisdiction has something which could be fixed. By the examples she chooses, she further implies that the flaws are universally cataclysmic. This I don't agree with. It's been my experience that seriously flawed systems are usually endemic, not pandemic. As we are people, not God, none of us has ever succeeded in making a perfect justice system, but there are a few that come close, a great number in the gray area and those few which are so badly out of kilter that they stick out like sore thumbs. To be fair, there may be more terribly bad systems than amazingly good ones; still, the vast majority are going to be in the gray area where the flaws aren't shockingly obvious. In fact, if she wanted to make a strong case this is where it should have been made.

In the gray is where "ordinary injustice" would occur. An examination of similar jurisdictions wherein one consistently has sentences of three months more than the other for the same crimes would have shed more light on this. Is the prosecution in one jurisdiction pushing for higher sentences? Is the prosecution in another not pushing at all? Has the judge succumbed to political pressure from local merchants to impose higher sentences in theft cases? Has the judge succumbed to pressure not to put too many people in jail because the local jail only has 20 beds and the locality will have to pay to incarcerate any more in another locality's jail? Are the local defense attorneys just taking part in an assembly line so that they can get paid? Are the young turks over at the PD office putting principle over their clients' interests so that they end up getting larger sentences than they should? Various factors can cause a local jurisdiction to develop in a certain manner until "that's the way we've always done it here" becomes the reason things are still done that way. Of course, the problem with pursuing this is that it would take years of sociological research, tons of data, be very hard to pin down (because of so many possible causes), and - in the end - probably be about as exciting to read about as a discussion on variations in the mass production of bread.

Thus, we get Amy Bach's book, which is largely a discussion of cases of extraordinary injustices. She gives us four different examples from around the country: badly flawed indigent defense in a Georgia county; a judge removed from office in New York; a county in Mississippi wherein she believes not enough people are being prosecuted; and a Chicago case which she believes shows over exuberant prosecution. The Georgia and Mississippi cases are the strongest in her book, but they are also clearly aberrations. They aren't "ordinary." The Georgia case is based upon the lowest-bidder contract defender system which is probably the absolutely worst way to set up an indigent defense system. She makes the defender the focal point of her examination, making him the bad guy of the piece. The system was an assembly line wreck with plenty of blame to go around, primarily to the county leaders who didn't hire an adequate number of defenders or pay the defender enough to have sufficient support staff, but the defender's the bad guy. As you can tell, I wasn't too impressed with this. I also found Ms. Bach's astonishment that this attorney, once transplanted into a well-run office used the resources he was given and did a good job, a little disturbing. He knew what a boon the resources he had gained were and finally having them he used them.

Her strongest case, and most extraordinary, was the Mississippi non-prosecutions. I must admit to some surprise that this was included. It's not a usual part of the meta-narrative in these kinds of books. About the only thing more surprising would have been a section on over aggressive defense attorneys causing their clients to spend more time incarcerated because they were too caught up in the fight. In this case, the story is that a large number of charges aren't even being taken to the grand jury and therefore aren't being prosecuted. The prosecutor gives some reasons for this and his investigator seems to bear a good deal of the fault, but it's obvious that something is very wrong in that county. However, it's nearly impossible to shoehorn this into the "ordinary" category. Sure, there are jurisdictions where the LEO's grumble a little and there are always citizens who are upset because a prosecutor's office declines to prosecute certain cases, but it's not often the norm (if for no other reason than that most places could vote the bum out).

We also get a story in which a New York judges is removed from his bench because he failed to tell some defendant's of their right to an attorney and he placed people in a position of having to plead guilty or being held with a bond too high to make until their trial date. Now, it's always hard to get a good picture of what's going on with a judge because few people who practice law in his courtroom are going to say things publicly which might get them in trouble with the judge if he's not dethroned. Still, the case as presented wasn't different than what might be seen in any court. A defendant who "doesn't remember" anything, including his lengthy record, at arraignment gets a high bond. People choose whether to plead to time served (or less) in order to get out of jail prior to the date that all the witnesses could be brought to court for the trial. The one thing that was happening was that the judge was not giving everyone an attorney. I don't recall a statistic telling us the number of these cases over a certain period of time, but even in one case it would be clearly wrong. Still, with the case as presented (who knows what was actually going on and being said behind the scene), it looked like something where the judge should have gotten a warning and some training - probably even had another judge observe his court for a period of time - not something where the judge should have been removed. I think the problem here was that the demanded an open hearing and that he was being too honest about the way things actually work; as one of the people interviewed pointed out, this appears to be the reason he was actually removed. This was Ms. Bach's strongest case for "ordinary" injustice. A judge, apparently with a pro-defense reputation, sitting in his courtroom and on occasion sacrificing justice for efficiency.

The last case, the Chicago murder. I shan't go too far into this one except to say that, as I read through it, I realized that it was all spin. It was obviously a hard fought case and her assertion that it shows overzealous prosecution could have been spun exactly 180 degrees and argued that this is a case which shows how lengthy, almost never ending appellate processes can lead to muddling of the evidence enough to allow a man found guilty to go free without an actual showing of non-guilt. It can be argued either way and doesn't help her meta-argument.

In the end, I think Ms. Bach has made a good try in her first book. I think she would have been better served to have concentrated on one of the stories and written an entire book on it. Each story cried out for further exploration rather than being crammed into the argument of this book. As well, I was bothered by the amount of credence she seemed to give people whose self interest was to make the primary person in each section look bad. Maybe this is just the cynicism hammered into me after 10 years of practicing criminal law. In the end it's an average book which those interested in this area should find interesting, even if they disagree with it.

13 November 2009

10 November 2009

1% Motorcycle Clubs:
Under and Alone

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate this book a 3.6. It's solid, interesting, and informative.

Once upon a time the Mongols MC was became big and violent enough that the federal government decided something had to be done. That something, or rather someone, was William Queen. His job was to infiltrate the Mongols and help bring them down from the inside.

Under and Alone: The True Story of the Undercover Agent Who Infiltrated America's Most Violent Outlaw Motorcycle Gang, is another book which I listened to via audiobook. It's an anecdotal / informative book which has as its main draw entrée into a world which few of us will ever see, the life of a 1% gang.

It's interesting to see how well the gang is actually run and held together. For instance, we are told it has a constitution and that in the late 90's the entire MC decided that they weren't going to beat “Prospects” (new members) anymore and that the rule was mainly followed (except by the one member who was supposed to enforce it throughout the various chapters of the club).

Queen makes contact and enters the gang through the San Fernando chapter. He rises up, becoming a prospect, a fully patched member, and finally an officer. Along the way, we get a feeling for the brotherhood which the members share, the danger they are to anyone who crosses them, their conflicts with Hells Angels, and the constant drug use. I'm not sure if the chapter Queen was in was an average chapter. The book makes it seem to be barely holding together with motorcycles that were falling apart and members not having the werewithall to do much besides hang out. It taxes there very fiber to make the cross country trips required by the mother chapter. In fact, I found myself wondering more than once whether the reason that Queen rose as far as he did in the three years he was under was because he was the only one who had his stuff together. In fact, we're lucky that Queen's on our side because if he had embraced the club entirely he might have led them to do a lot more damage then they were able.

It was an interesting listen. I recommend it to anyone interested in this genre as well as anyone who wants a primer on how 1% gangs work.

09 November 2009

You Get the Murder Gene from Your Mother

But apparently it requires you to be a male and environmental activation as a youth:

Gang Leader for a Day: A Rogue Sociologist Takes to the Streets

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate this book a 3.7. It's a fascinating look at how those whom we see in court day after day actually live their lives.

I first heard of Sudhir Venkatesh when I was watching a TED video about Freakonomics and the speaker told how Sudhir, as a brand new sociology grad student and someone entirely ignorant of how things worked in the Chicago projects, walked into the middle of a project high rise, got abducted by a gang, and then spent the rest of his grad school career exploring the connections he built through that abduction.

Gang Leader for a Day tells us the rest of the story and it is fascinating. I listened to it as an audio book, but I suspect it's just as good as a read. It starts with a rather naive middle class kid who didn't know any better than to walk into the middle of the projects. From there, we go with Sudhir as he gets hooked up with the gang; his exploration of the gang is the largest portion of the book. From there, he works outward to explore the rest of the people living in the high rise the gang ends up at (the first building gets torn down early in the book). We meet the lady who runs the building, controlling who gets resources from the corrupt city workers and charging her own form of taxes from those running off the book businesses in the building. We meet the men and women running their own off the book businesses ranging from mechanical work to a lady running a store out of her own apartment. We even get a glimpse at how all this interacts between different buildings and gangs. Then, just as we get a fair understanding, we get to see it all come apart as Chicago decides that the high rise projects are a disaster and tears them all down, throwing everything into chaos.

It is fascinating to see how things interweave from the perspective of someone who spends so much trying to figure out how it all relates together. Particularly interesting is Sudhir's description of the businesslike manner in which a drug dealing gang operates. He gets a good view of how things work by hooking up with the gang's version of a mid-level manager who is a college grad and a trouble shooter for the gang leaders. He does everything from enforce drug quality standards to negotiating cease fires with other gangs. In the end, one gang member even gives Sudhir the books for the gang.

Those of us who work in criminal law probably have a better view of how the poorer segments of society than most. Still, it's interesting to see how the whole enviroment interacts. Of course, this is a snapshot of how things were at a particular time and place. I realize that it's different from how things are elsewhere (after all locally we deal with trailer parks, not high rise projects), but that doesn't detract a bit from the fascinating picture Mr. Venkatesh paints.

02 November 2009

Oerheard in the Hall

Defendant: I want to have a plea agreement and probation.

Lawyer: That's not what the Commonwealth is offering. They're offering 6 years and 2 months with 6 years suspended. That's two months in jail.

Defendant: But I want a plea agreement with probation.

Lawyer: Look, you can plead straight guilty and get sentenced by the judge. You can plead not guilty and have a trial by judge or jury. Or, you can take the Commonwealth's offered plea agreement. 2 months.

Defendant: I'll plead guilty if I get a probation plea agreement.

Lawyer: That's not what the Commonwealth is offering.

Defendant: But it's only stealing and I ain't got anything else on my record.

Lawyer: It's 8 different charges of grand larceny on 8 different days. They're not going to offer you probation.

Defendant: But, . . .

26 October 2009

Hard to Make Your Closing Thrilling When It's All About the Paperwork

Defendant lied to get benefits from a State Agency:

---

Well, ladies and gentlemen, I told you we'd get through this trial quicker than the last trial. Unfortunately, this one was more boring than most cases too. That's just the way it is in paperwork cases. You get up here and basically the only witnesses are people showing you how the paperwork is done and telling you why he did what he did.

Going all the way back to February 5, 2005, I told you I was going to have this paper for you. Feel free to go over this back in the jury room. He answers everything so that he can get benefits, including checking no on this question, which, compared to a lot of things in this 12 pages document, really isn't all that complex a question. “Have you, or a person for whom you are applying been convicted, after January 1, 2001, of snipe hunting or possession of snipe pelts?”

OK, he wants you to believe he didn't understand that question. Well, let's say he can't read too well. I don't believe that's been shown. He was reading things while on the stand and his illiteracy seems to come and go, as convenient. Still, we know better, because Pete Jones and Mary Greene got up on the stand and told us what they do for each interview. Now, I know that Mr. Smith tells you it's a ten minute thing, you're in you're out, you're done. I guess the interviewers are supposed to sit around the rest of the day drinking coffee or something, because if they only schedule 2 to 4 interviews a day I don't know what else you'd be doing. What are they filling that time with? It just doesn't make sense. Recall that they both told you the same thing. This is what we do; this is what was done with her. And they weren't in the courtroom during the others' testimony, so they couldn't hear what the other said and sit down and say exactly the same thing.

They both came up here and told you that on two dates a year apart, on 15 October 2007 Pete Jones interviewed him about the various benefits he was getting from State Agency and he answered no on the snipe hunting question. It gets put into the computer and he answers “no” again when they go over it verbally. The he has to scan it himself. All those opportunities to say “Yes, I've been convicted.”

18 November 2008, Mary Greene, same thing, they do the computer – and why would the workers cheat on the computer? It can't take that long to fill out the questions on the computer – they fill out all the computer stuff. She prints it out, goes over it with him. He again says, “No, I've not been convicted.” At least twice on that day he says, “No, I've not been convicted.”

Now, the big defense seems to be that, “They knew.” “They knew; they should have known.” Their one sheet of paper which seems to go anywhere near that is this one. This is the printout you've seen us arguing about up here. Now, this is, as it says here on the front, “Request to Be Made Payee.” This is from Federal Agency. You can tell it's from Federal Agency. Here they go on about “We are returning this application to you for your records” and telling that they store their copy electronically. This sheet was turned in the day after he told State Agency that he didn't have any snipe hunting convictions in 2006. It says that Federal Agency is giving him $176 a month from this date forward. And there's this part which says if you have any questions contact us at Federal Agency.

So, this is a Federal Agency document, which, by its own writings on page 2, was given back to Mr. Smith. Not given to anyone else at State Agency. And you'll recall that when Mary Greene was on the stand and defense counsel walked up and said “This is the form you get at the office” and she said “No” and he stopped asking questions real quick. She explained a little bit further, when prompted, that they get a different form than this. This is something that was given to Mr. Smith and if it had made its way into the State Agency's paperwork would have been stamped “received”, with a certain date, just like you see it stamped on the February 5 application Mr. Smith filled out and handed in. And, if he'd gone and gotten this copy from State Agency, like he told you today, it would have “received” such and such date on it. It doesn't - this is just his application from Federal Agency, to get money from them as well.

And, as far as it goes, for impeachment purposes, we have, March 22, 2006, the day before this application – see right here, it has March 23 – he was at State Agency and again said “Snipe Hunting Conviction: No.”

So, the whole “They knew” thing is a red herring and there are lot of red herrings, and that's [Mr. Defense Attorney]'s job. He's here to try to get his client not convicted. And he's tried to point out everything he can to get her not convicted. There's just nothing here which rebuts the paperwork and interviews.

Mr. Jones and Ms. Greene have no reason to be going after him. He couldn't state a reason that State Agency would be coming after him. No reason why Mr. Jones and Ms. Greene would be lying about it, going after him. Why would they make all this up? It doesn't make any sense at all. They're just doing their jobs and they're here today, rather than being at work dealing with their other clients because he lied. And that's it plain and simple ladies and gentlemen. There's not really a whole lot more to this. I wish I had some big rousing argument to make or statements to make.

He lied. He lied in order to get benefits. He's trying to do the same thing today by shuffling things at you like this application to Federal Agency and claiming he can't read anything despite the fact his initial application is filled out pretty well and on the other days he didn't really have to read anything. He got asked the questions. As a matter of fact, his inability to read is not what we're here for today because the two times he's charged are the times he was asked the questions by those folks and answered “No, I don't have any snipe hunting convictions.”

You'll get all this back there. Of course, here's the paper showing his snipe hunting convictions, 2003, before any of this started, before he applied at all to State Agency: felony snipe hunting.

I wish I had some sort of rousing statement to give you, like I said, but I think it's straight forward. I don't really think there's any reasonable doubt here folks. [Get charging instruction from judge] We have to prove he falsely stated in a document to get benefits from State Agency. That's what he did. He did it twice, and I ask you to find him guilty of that. Thank you ladies and gentlemen.

25 October 2009

Someone Stole a Pyramid

22 October 2009

Quoth the Defense Attorney

From an actual closing argument in a jury trial:

"Sherlock Holmes had an arch enemy, Professor Moriarty, who made nefarious plots and gave him someone to fight against. The Batman has the Riddler and Joker. Superman has Lex Luthor. Pity the poor County of Pitcairn; the worst person they can come up with is Jane Smith." (points dramatically at client who looks pitiful at defense table)

21 October 2009

The Shelby County Anti-Judge Mutiny:
When the Judge is Too Nice to Defendants

It's not a good thing to have a Commonwealth’s Attorney, County Attorney, Assistant County Attorney, District Court Judge get together to write an anonymous letter of complaint to the Judicial Conduct Commission stating that if the Circuit Court Judge remains on the bench "blood in the streets", because he is too lenient.

Not sure how true any of this is, but it makes me leery of running for judge in Kentucky.

20 October 2009

Jenny Fontaine: Emotional Prosecutor

Now, here's a tactic I've not yet seen in court (not sure this one will work for us guys).

World's Most Impressive Scam Artist?

An entire room dedicated to him at the prosecutor's office and "the alleged scam actually would be his third in a decade operated over the phone from the Department of Corrections."



Who the heck is this guy? Lex Luthor? How the heck does he STILL HAVE ACCESS TO A PHONE?

Perfect Prosecutor

I assume this game doesn't exist in English. If he truly is perfect it would probably be a good training device.

19 October 2009

How do you figure the value of an item stolen?

Baylor v. Commonwealth:

If there is no market for a used item (in this case catalytic converters) then the value of a replacement cannot be used to prove value. Value must be proven by another means and must be the value of the item at the time it was stolen. Possible methods offered are:

[T]estimony of a lay person as to the property’s fair market value, the opinion of an expert, or by traditional accounting principles, starting with the original cost of the item and then factoring in depreciation or appreciation.

Of course, the question becomes, if there is no market for the item once used and the value is the value when stolen after it has been used, is there any value if it's not the cost of replacement?

No, You Cannot Trifurcate a Virginia Trial

Elem v. Commonwealth: Defense attorneys in Virginia have been trying to figure out for a long time how to keep prior convictions out of cases in which an element of the offense is a prior conviction. No one has been able to convince Virginia courts that they should adopt the reasoning of Old Chief, so some have tried to get creative.

In Virginia all jury trials are bifurcated. In the first part the jury decides guilt or innocence. In the second part the jury decides the sentence.

Defense counsel tried for a trifurcated hearing. The first would have been to find guilt or innocence on the petit larceny. The second would have been for the jury to find whether or not there were two prior larceny convictions (necessary for the misdemeanor to be elevated to a felony). The third would have been the sentencing phase.

However, both the trial court and the appellate court denied them because such a procedure is not allowed by any legislation which has been passed by the General Assembly.