"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, May 31, 2005

The 6th Amendment and the Common Law

In my friendly argument with A Public Defender over the origins of the "right" to court-appointed counsel, I came across this interesting tidbit of history. At common law it seems there was not a right to have an attorney if you wanted one in capital cases!

The constitutional historian Joseph Story commented upon the 6th amendment:

"Another anomaly in the common law is, that in capital cases the prisoner is not, upon his trial upon the general issue, entitled to have counsel, unless some matter of law shall arise, proper to be debated. That is, in other words, that he shall not have the benefit of the talents and assistance of counsel in examining the witnesses, or making his defence before the jury. Mr. Justice Blackstone, with all his habitual reverence for the institutions of English jurisprudence, as they actually exist, speaks out upon this subject with the free spirit of a patriot and a jurist. This, he says, is 'a rule, which, however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see, that the proceedings against him are legal, and strictly regular, seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which is yet allowed him in prosecutions for every petty trespass.' The defect has indeed been cured in England in cases of treason; but it still remains unprovided for in all other cases, to, what one can hardly help deeming, the discredit of the free genius of the English constitution."

Thus, I argue, the purpose of the 6th was to guarantee counsel, not to mandate that it be provided by the state. It may seem unusual to refer to a right of counsel, as my opponent states, if it's not meant to imply that the right must be supported by appointment of counsel. But the reality is, the concern of the 6th Amendment was to depart from the common law by ensuring that counsel would be permitted in all criminal cases. This understanding also helps explain why the 6th was never, until the Warren court, seen to require taxpayer funded defense counsel as a mandate of the amendment itself.

Friday, May 27, 2005

"If you cannot afford one..."

My 6th amendment argument continues over at A Public Defender; he ably restates the relevant case law, which only begs the question. Yes, the Supremes certainly interpret the Constitution to mandate taxpayer-funded defense attorneys for the indigent. I argue that this discovery is contrary to the text of the 6th Amendment, which only states you have a right to an attorney, not that the state must pick up the bill.

Con Law 101

When is a dog sniff a "search?" For the answer to this exciting question, see Ken Lammers and me go at it here; for a give and take on the equally mesmerizing question of the rights of the indigent to taxpayer-funded lawyers under the 6th amendment right to counsel, see this posting over at Mr. District Attorney.

Thursday, May 26, 2005

Go ahead... make my day

From the General Assembly of Virginia, the oldest deliberative body in America, comes this new and urgently needed piece of legislation, reportedly signed by Governor Mark Warner:
Be it enacted by the General Assembly of Virginia:
1. That § 19.2-12 of the Code of Virginia is amended and reenacted as follows:
§ 19.2-12. Who are conservators of the peace.

Every judge and attorney for the Commonwealth throughout the
Commonwealth and every magistrate within the geographical area for which he is appointed or elected, shall be a conservator of the peace....
Now, here's the statute already in place enumerating the general powers and duties of Conservators . . .

§ 19.2-18. Powers and duties generally. — Every conservator of the peace shall have authority to arrest without a warrant in such instances as are set out in §§ 19.2-19 and 19.2-81. Upon making an arrest without a warrant, the conservator of the peace shall proceed in accordance with the provisions of § 19.2-22 or § 19.2-82 as the case may be.

It is illegal to carry a concealed weapon in Virginia without a permit, which requires court approval and other hurdles. But with our newfound authority to arrest comes the following:

C. This section [the concealed weapons statute] shall also not apply to any of the following individuals while in the discharge of their official duties, or while in transit to or from such duties:
1. Carriers of the United States mail;
2. Officers or guards of any state correctional institution;
3. [Repealed.]
4. Conservators of the peace, except that the following conservators of the peace shall not be permitted to carry a concealed handgun without obtaining a permit as provided in subsection D hereof: (a) notaries public; (b) registrars; (c) drivers, operators or other persons in charge of any motor vehicle carrier of passengers for hire; or (d) commissioners in chancery....
So prosecutors in Virginia will (on July 1) have arrest powers and authority to carry concealed weapons. When do we get the handcuffs? And the lessons in extracting coerced confessions and conducting rogue searches and beating suspects so as to leave no marks?

Fund-raising idea for Planned Parenthood

Via WorldNetDaily comes this feel-good bit of news:

In Ukraine and other former Soviet republics, women are being paid about $200 to have abortions and turn over their dead babies, which, in turn, are sold for over $9,000 for use in "youth injection" beauty treatments. The dead pre-babies are cryogenically frozen before being peddled for use in rejuvenating skin and treatments of diseases.
At least they're not using the skins for lampshades.

Monday, May 23, 2005

An Appreciation

Consider the things we expect from cops today (from the Lynchburg (Va) News and Advance):

• We expect them to risk their lives protecting us from muggers, rapists, con artists, drunk drivers, rabid animals and anything else unpleasant that may be out there. We expect that protection around the clock.
• We expect them to track down any property that may have been stolen from us, no matter how poor a job we may have done in guarding it.
• We expect them to control unruly family members, round up stray dogs and tell the neighbor upstairs to turn down his stereo.
• Even though they constantly see us at our worst, we expect them not to become cynical about human nature.
• Even though we give them what is, in a democracy, remarkable power over us, we expect them not to abuse it.

And yet, how often do the enemies of the police of this country (are you listening, ACLU?) stop their attacks and give thanks for all the good work done in the vast majority of cases by the overwhelming majority of police officers every day?

Friday, May 20, 2005


Oklahoma Trooper's killer sentenced to die. The trooper "was shot in the back of the head Dec. 26, 2002 as he begged for mercy, prosecutors said. He had stopped to check a parked car and found a portable methamphetamine lab."

Appellate Writing 101

I received a petition for appeal from a felony murder conviction I recently obtained. The surprising thing about it was the abominable writing, since the attorney is a fairly sharp guy.
Some examples of how NOT to write a brief to be read by an appellate judge. My comments in [brackets] and emphases added by me:

1. Use complete sentences!
"Tried by a jury."
"The Court refused that instruction. Incredible."
"Reversible error." [used many times after making an argument]

2. Don't assume the Court will reverse:

"The defense would still like that opportunity at the next trial."

3. Don't be colloquial:

"These are subtle things, but even if there is a hint of impropriety (abuse of discretion) regarding these matters, it really should be looked at carefully."

4. Ummmm... try to leave the Pope out of it (arguing that my victim impact witnesses should not have been allowed to testify about the victim's good character):

"The question, at sentencing (and this is the mitigation factor that the defense uses), is whether or not we are dealing with the Pope, or whether or not we are dealing with Al Capone (extreme example, but the point is made). The evidence during the guilt or innocence phase of the trial, at least from the defense's point of view and, frankly, from the autopsy report's point of view, is that this man was asking for prostitution and had a history of drug use."


"The next question is, what is the sentence for this lady [the defendant]? If the victim is the Pope, the sentence is severe. If the victim is Al Capone, the sentence is less severe. The mistrial should have been granted. Reversible error."

As our defense attorney might say: "Incredible."

Thursday, May 19, 2005


It's always good to get your "self-esteem" knocked around every so often. Today was my turn. I was doing a traffic docket, which is ordinarily routine to the point of boredom. An attorney asked me if I would reduce a reckless driving to the lesser charge of improper driving. As is my usual practice, I told him I would only do it if the officer advised me it was agreeable to him.

I had earlier talked to the officer about the case but only got to hear that the defendant squealed his tires and cut through a parking lot to avoid waiting at a light. I had to go in front of the judge, so the officer wasn't able to finish the account of what the defendant did. So with that, and a defendant with a pretty clean record, I'm thinking no problem if the officer wants to agree to reduce it.

Well, I'm handling this docket, and it's kind of busy, and the attorney and the officer approach me in between cases and say that they both think improper driving is fine. We call the case, I amend the charge, and the judge asks if we have an agreed disposition. No. So he wants to hear a summary to decide what to do with the disposition.

So the officer summarizes, in excruciating and exact detail and for the first time I hear the REST of the story as Paul Harvey would say... it seems the guy burned rubber, cut through the lot, then when the officer caught up with him at the next light, the defendant did a "brake torque" where you apply your brakes and your gas simultaneously, which causes your tires to spin in place and make a lot of racket. It's also very dangerous, 'cuz if the brakes fail, off you go at a high rate of speed.

Then the defendant proceeds up the road cutting in and out of traffic at a high speed.

Well, by this time the judge is looking at me with a look that says "what the heck were you thinking when you cut this guy a break?" He SAYS, "did the Commonwealth know all these facts before you agreed to reduce the charge?" I sheepishly reply, "well, I heard some but not all the facts."

Bottom line: the judge reads the guy the riot act, gives him the max of $500 and tells him he got a huge break because he would have gotten jail time from the court on a reckless driving charge.
When I get a chance I go talk to the officer, who realizes that he put me in a bind with the judge by summarizing his case in the worst possible light. "Why the heck did you tell me to reduce that thing??"

"well, the guy was really cooperative when I stopped him, so I didn't mind cutting him a break."

Oh well, sometimes those easy dockets just blow up on you.

Wednesday, May 18, 2005

Well, some disappointment here at the news that my scheduled Monday jury trial (possession of a firearm by convicted felon) will become a guilty plea. The defendant asked for a jury at his scheduled plea hearing last time, and I was looking forward to the trial, since the guy had been involved in a police stand-off and had made a full confession to firing off his shotgun in the house. Seems his attorney talked some sense into him.

On the other hand, a break will be nice, especially on a Monday... I've been the jury guy in the office lately, with a pretty good track record in getting good sentences on my last three jury trials in the past month or so: 48 years for robbery/firearms; 43 years for robbery/firearms; and 5 years (felon in possession of a firearm; read the whole sordid tale here [scroll down to "A Jury Trial in Virginia"]). So I'm ready for some time off just doing bench trials and general district court.

Besides, I have to work on a brief in opposition to a petition for appeal from a recent felony murder conviction (prostitute injects victim with two hits of heroin; he dies; she's convicted, gets 16 years from a jury). I'll have to post some excerpts from the petition as a "how NOT to impress the reviewing Court of Appeals judge. Stay tuned.

Monday, May 16, 2005

Life at a Public University

If I may be permitted to vent... after walking through Columbia, S.C., a lovely old southern town, I became disgusted and appalled with one thing. The University of South Carolina is in the town, and lots of students apparently live off campus in older houses, many of which have been subdivided. What struck me was that, even with school out or in recess, the student houses were easily identifiable by their dilapidation, the trash strewn about, the cigarrette butts by the hundreds in the yard, the empty beer cans. What possesses the University to countenance this trashing of their host city?

I really became enraged at the arrogance of these young hoodlums. It occurred to me that many of these unwashed rats would be the ones you'd see at "earth day" events or protesting this or that capitalist undertaking, or "global warming."

Yet in their own world, they wallow in filth and pollution of their own making. One can only surmise that the outward degradation and disorder is a mirror of their inward chaos and debris.

I know this may all be commenting on the obvious, but when will these taxpayer-funded institutions of "higher learning" reign in the barbarians and enforce some standards?

Take a Bite out of Crime

LIMA, Peru (Reuters) - A Peruvian woman sank her teeth into the testicles of a man who broke into her property to steal cattle and tried to rape her, leaving doctors no option but to lop one off, police and officials said on Friday.
"It looked like a dog bite. The man arrived with his right testicle dead and hanging by a thread ... there was nothing to do but cut it off," said Hugo Jaime, a surgeon in the regional hospital in Huanuco in the Andes northeast of Lima.

Monday, May 09, 2005

Prostitution, Islamic style

I know all religions are equally valid and we can't judge another religion's teachings, blah, blah, blah... so at the risk of seeming to be insensitive, it appears that Iraqi moslems will enjoy religious sanction for "pleasure marriages--" paid sexual relationships lasting from as little as one hour to as long as ten years. According to this article, the practice is condoned by Islamic law. The Shiites have no problem with it, and the Sunnis, although fine with polygamy, object to pleasure marriages even while more and more engage in the practice, which was banned under Sadaam.

Determine your eternal fate

Since I'll be gone for the rest of the week (glamorous training in scenic Columbia, S.C.), I thought I'd leave this link to the dante-inferno-test to keep you occupied. See where you'll be spending eternity. I'm one of the virtous few, apparently, who will make it into purgatory! Hope to see you there.

Friday, May 06, 2005

Check this out, comrade

Credit Dappled Things again for finding these and these pictures of a British tourist's time in North Korea. Fascinating and surreal!

Thursday, May 05, 2005

Mother's Day Story

From AP and the Washington Times comes this feel-good Mother's Day story:

Four years after a little girl's headless body was found, police identified an Oklahoma woman as her mother and charged her Thursday in the murder of the child who became known as Precious Doe.
Police said it was the girl's stepfather who actually killed her with a kick to the head and then used hedge clippers to sever her head. He was being questioned in Muskogee, Okla.

And some people don't support capital punishment?


Lynndie England's guilty pleas rejected by a military judge because he is not convinced she knew what she was doing was wrong? Her colleague, Pvt. Graner told the judge that:

"pictures he took of England holding the leash were meant to be used as a training aid for other guards. But England had told Pohl when she entered her plea that the pictures were being taken purely for the amusement of the guards. England's plea agreement had carried a maximum sentence of 11 years in prison, but the prosecution and defense had a deal that capped the sentence at a lesser punishment; the length was not released. Allen Rudy, a Dallas attorney, said Wednesday he could not recall a military plea being scrapped under such circumstances during his 25 years as a Navy lawyer and judge. 'That is a shocker,' Rudy said. 'But (Pohl) has to protect the defendant in that situation. ... He has to make sure she wasn't talked into it by her lawyer or her parents or someone else.'"

Excuse me, but I thought that question was what the plea colloquy was supposed to determine (this case explains the law in Virginia on this issue). I'm sure the defense of "I thought it was a training aid when I had those guy strip and form a pyramid and then simulate homosexual acts" will go over well. I imagine the defense would be more upset at the judge than the prosecution.

Judge Greer, great guy.

From WorldNetDaily:

"Alan Scott Miller, a member of the West Pasco Bar Association, told the Tampa Tribune [Judge George] Greer's professionalism and integrity was punctuated by the way he handled the Schiavo case. 'He's getting this award for all of his contributions on the bench, not just the Schiavo case,' Miller said. 'It's like a lifetime achievement award for an actor.'"

Next up for Greer: the coveted Pontius Pilate award for conspicuous bravery in turning the other way while a husband with a mistress and two children by her tries to off his wife by starvation.