Is the DOJ Too Easy on Prosecutors That Mess Up?

Is the DOJ Too Easy on Prosecutors That Mess Up?: "The USA Today on Friday continues its series, called Justice in the Balance, about federal prosecutors behaving badly.

"

Drug Forfeitures

Forfeiture is the government seizure of property connected to illegal activity. Forfeitures are utilized by the federal and state law enforcement in the ongoing "war on drugs."
Law enforcement has asserted that it is a necessary and effective deterrent to drug crime, while opponents argue that existing procedural safeguards result in too many innocent parties having their property taken away, with little or no recourse for recovery. If your property or assets have been the subject of a criminal or civil forfeiture, it is important to consult with legal counsel to understand your rights and options.

Property Subject to Forfeiture
Government authority to seize property connected to illegal activity comes from federal statutes, as limited by those laws and the Constitution. Authorizing provisions of state and local statutes tend to be similar to federal law. The United States Supreme Court, in Bennis v. Michigan identified certain categories of property subject to forfeiture:

Contraband - property for which ownership itself is a crime (e.g. illegal drugs, smuggled goods)

Proceeds from illegal activity - property that results from, or can be traced back to, illegal activity

Tools or instrumentalities used in commission of crime - property used to commit a crime (e.g. cars, boats, real estate)

Two Forms of Forfeiture: Criminal and Civil
Criminal forfeiture is punitive. The government seizes a convicted person's property as a part of the sentence. Because it is a criminal proceeding, a defendant is afforded various Constitutional protections. The government only needs to show by a preponderance of the evidence that the defendant obtained the property around the time of the crime and that it was unlikely it came from any other source. The burden then shifts to the defendant to prove this is not the case.
By contrast, civil forfeiture actions proceed against the property itself, which is the defendant in the case rather than the owner. A criminal charge or conviction is not necessary before the government can seize.

Forfeiture proceeds fund law enforcement activity. Because of law enforcement's strong financial incentive to use civil instead of criminal forfeiture, critics claim that the practice has moved from being a means to fighting drug-related crime, to being an end in itself.

If your property has been seized by the government, contact an attorney immediately. You have strict time constraints to respond to the suit to confiscate your property. Failing to respond to the suit can result in a default judgment being entered against you. You may be able to post a bond to get your car, boat, motorcycle, etc. from the government while the proceeding is pending. You may also be able to serve some discovery on the government to make them explain certain facts it intends to introduce at your forfeiture hearing.

Drug Possession and Going to College

Students who make the mistakes of underage drinking, drinking too much, or are found in possession of illegal drugs, such as marijuana, risk being expelled. It isn't necessary that charges are brought or that a student is convicted. It's enough for a dean of the school to decide that the student has misbehaved to invoke the right to expel.

If you are arrested, however, the costs of a mistake are high. Drug crimes put a student's federal student aid at risk.

Many times, a student arrested for possession of an illegal substance or underage possession can be resolved without a finding of guilt if the student qualifies for first offender status under Virginia law.

Presentence Report: What You Don't Know Might Hurt You

Presentence Report: What You Don't Know Might Hurt You: "An interesting article that came out this past Sunday in the Roanoke Times about a little known, yet widely practiced, part of federal sentencing: a written recommendation from United States Probation Officer that is given to the Judge in addition to the Presentence Report. Federal Rule of Criminal Procedure 32 requires a presentence report for offenses. The report includes a summary of the offense, a summary of the sentencing guidelines, and discusses all aspects of the offender's life including work history, substance abuse issues, mental and physical health problems, and includes calculations of possible sentencing outcomes. Much investigation and preparation goes into both getting information for the report as well as getting information to challenge legal inaccuracies, factual disputes, or other challenges to the report. Often times, issues identified in the presentence report are contested at the sentencing hearing in open court.

The Roanoke Times article report on the questions raised by the process, in addition to the presentence report, of the probation officer's 'recommendation' which can be a written recommendation or an off the record conversation that takes place between the Judge and the Probation Officer.

In Roanoke, after the sentencing hearing, the offender received a copy of the presentence report in the mail which included the mistakenly mailed confidential recommendation from the probation officer. The defense attorney and the offender both thought the report contained inaccuracies and painted an unfairly unflattering picture of the person. Here is an excerpt of the article (full article here):

No one who tracks how each of the nation's federal districts deals with the rule about sentencing recommendations, according to the national office of the federal defenders service and two longtime U.S. judges in Roanoke. Most districts keep the recommendations secret, between the judge and probation officer, said Karen Edmonds, a Washington-based spokeswoman for the administrative office of the U.S. Courts.

'There is no justification for a lack of transparency in this critical aspect of the adversary process,' University of Arizona law professor Marc Miller wrote in an e-mail response to questions.

Miller, editor emeritus of the academic journal Federal Sentencing Reporter, is among scholars and lawyers who for years have called for the U.S. Sentencing Commission and Congress to change the federal rule. Unless defense attorneys and prosecutors have a chance to challenge a probation officer's recommendation, a judge could impose a sentence based on wrong information, Miller said.

Paul Dull, a Roanoke defense lawyer not involved in Wooten's case, said basic fairness is at stake.

'We all have clients who for one reason or another' irritate a probation officer, said Dull, who has years of federal courtroom experience. 'And there's no way for us to know if the probation officer said to the judge, confidentially, 'Hey, this guy. ... He was uncooperative.' '

The suggestion of such a scenario set off a stir in Roanoke's federal justice system over the summer.

Cargill , a federal defender since the Western Virginia office opened in 2006, represented former restaurateur Wooten, who was sentenced in July to 33 months in prison. A month later, Wooten, who had already reviewed his pre-sentence report with Cargill, received a routine copy in the mail.

Also in the envelope was the probation officer's confidential sentencing recommendation, accidentally mailed from the probation office.

Wooten and Cargill thought the probation officer's recommendation painted Wooten in a worse light than he deserved.

On Aug. 11, Cargill fired off a letter to the head of the probation office, the U.S. attorney's office and the judicial district's chief judge. He called for a review of sentencing recommendations 'to be sure they do not contain facts that are not in the presentence report' and slammed the events that he said left his client unable to respond to inaccurate statements.

Such open criticism of court workings is unusual for lawyers.

"

Facing a criminal trial, contractor settles claims

Facing a criminal trial, contractor settles claims: "

When a general contractor failed to pay subcontractors on a retail construction project, the Stafford County Commonwealth’s Attorney brought the contractor up on criminal fraud charges.

Facing an imminent jury trial, the contractor now has agreed to pay out a total of  $400,000 to resolve the case, according to The Free Lance-Star.

Contractors will get only about 40 cents on the dollar under the deal, but Commonwealth’s Attorney Ed Lustig told the paper there was no evidence of other available funds. “We consulted with most of the subcontractors,” he said. “Our feeling was this was the best deal we could get as far as giving them restitution as quickly as possible.”

-Posted by Peter Vieth

"

Only One Thing Counts in This World: Get Them to Sign on the Line Which is Dotted

Only One Thing Counts in This World: Get Them to Sign on the Line Which is Dotted: "

The Supreme Court of Virginia dropped a pair of decisions on us last month that highlight the wisdom of Mr. Baldwin's* worldview--although, oddly enough, neither came up in the context of contracts. Read together, the holdings in Aguilera v. Christian and Shipe v. Hunter make it clear that when the Code or the Rules require a lawyer to sign a pleading, they mean that the lawyer has to physically sign the pleading.

In Aguilera, the Court held that a pro se litigant could not authorize a person who wasn't authorized to practice law in Virginia to sign a pleading on his behalf.

Aguilera asked his neighbor, who was licensed to practice in DC but not Virginia, to sign a complaint. It appears that he did so on the day before the two-year statute of limitations on his claim ran.

The trial court dismissed the case, and the Supreme Court affirmed. It held that Aguilera's complaint was a nullity because it was not signed by the party or a lawyer licensed to practice in Virginia.

Shipe is marginally more interesting. It addressed the related question of whether a lawyer who's licensed in Virginia may authorize a lawyer who is licensed elsewhere, but not in Virginia, to sign a pleading on the Virginia lawyer's behalf.

The answer, as you've surely guessed, is no. The trial court held that the complaint was a nullity, entered summary judgment in favor of the defendant, and dismissed the case with prejudice.

On appeal, the Supreme Court affirmed. It noted that Code Section 8.01-271.1 generally provides that every pleading, written motion, and other paper of a represented party shall be signed by at least one attorney of record in his individual name. Rule 1:4(c) similarly requires a lawyer to sign a pleading, and Rule 1A:4(2) provides that no out-of-state lawyer may appear pro hac vice except in association with a Virginia lawyer, and any pleading will be invalid unless local counsel signs it.

Relying on case law from other contexts, the plaintiff argued that a person may make another his agent for purposes of signing a pleading. The Court rejected that argument. It found that, to deter frivolous litigation the General Assembly had decided to hold lawyers and pro se litigants highly accountable for their pleadings via the sanction provisions of Code Section 8.01-271.1.

It explained:

Because of the strong public policy considerations underlying those statutory provisions and rules, we construe them to require that a lawyer who files a pleading in a Virginia tribunal  must append his personal, handwritten signature to the pleading.

(Emphasis added.) The Court also observed that Rule 1:5 implies that a member of a law firm signing a pleading must do so in handwriting, by providing that signatures to briefs and petitions for rehearing--and only those papers--may be printed or typed and "need not be in handwriting."

Thoughts about Aguilera and Shipe:

• When the Code or Rules require a signature, unless they specify otherwise, they apparently require an old-fashioned, personal pen-and-ink signature. The Court has repeatedly held that a pleading signed in a representative capacity by someone who isn't a Virginia lawyer is a nullity. And yet, even after these two recent decisions came down, I've seen at least question from a lawyer on exactly this point. The signature requirement is a bright-line rule.


• That said, it is kind of a harsh bright-line rule. You almost get the sense from the policy discussion in Shipe that the Court wished it had a little leeway, but felt constrained by the statute (and, err, its own rules).


• What are the implications for appellate lawyers? Appellate briefs are printed. Sure, Rule 1:5 allows signatures on briefs and petitions for rehearing to be typed or printed--but what about petitions for appeal? Emmert suggests that a lawyer's scanned signature attached to a pleading will be sufficient, as long as it's his signature. I think he's right--frankly, we've gone bananas if he's he's wrong--but I also suspect that it's only a matter of time before a crafty lawyer in a tall-building firm challenges a brief from a commercial printer on this ground.

 *Totally off-topic, but hilarious observation: Alec Baldwin's IMDB bio describes him as "Raven haired, suavely handsome and prolific New York-born actor Alec Baldwin."

"

"Don't Talk to the Police" by Professor James Duane

"Don't Talk to the Police" by Professor James Duane

A Really Intrusive Search. Really, Really Intrusive

A Really Intrusive Search. Really, Really Intrusive: "Frisks are for kids.  A couple of cops in Minneapolis saw no point in awaiting the legal niceties, or perhaps enjoy their job a bit too much.  They decided to snap on the latex gloves and go for it.  What they didn't know was that they were actually starring in a porno flick, as they were caught on video.  From the Star Tribune:

Recardo Meeks has the video.

It shows two Minneapolis officers doing a strip and body cavity search on a city street and is now a key piece of evidence in Meeks' complaint and lawsuit against the city.

Police said he was stopped for speeding and swerving, and officers smelled burning marijuana in his car.

The video shows Meeks leaving his car and getting patted down and then handcuffed. It appears an officer looked inside Meeks' car. A short time later, an officer pushed Meeks' head down toward the trunk of the squad car and both officers pulled down Meeks' pants and underpants. After searching the garments, an officer grabbed latex gloves from the squad's trunk and removed tissue and a small amount of marijuana from Meeks' buttocks.

So what if the law only allows a pat down when the cops have a reasonable suspicion that a person is armed.  So what if a strip search is unlawful.  And don't even ask about search a 'body cavity,' which is the polite way to describe anal rape.  If they did nothing, this bad dude would be free to walk, and that would make them look less than in control.  As rape victim advocates remind us, it's all about control.



Under ordinary circumstances, this would never have happened.  By that I mean, Recardo Meeks would say it happened, but the cops would deny it and everybody would say that Meeks, a criminal, was lying, and the cops, Anderson and O'Connor, are heroes, with medals and commendations to prove it.  Why, as prosecutors love to argue, would the cops lie?



Unfortunately, video doesn't lie either.



Meeks filed a complaint with the Civilian Review Authority, which referred it to the police department for discipline.  It appears that these two police officers will have a sternly worded letter reminding them of the department's policy to not stick their fingers up people's butts in their permanent file (but only for three years, when the statute of limitations for anal rape expires), alongside their medal of valor.



Meeks has sued for the violation of his buttocks.  This goes too far for Minneapolis.  The City denies their cops did anything unconstitutional.  The City offers a three-prong defense:

Two months later, Meeks was found guilty of being a felon in possession of a firearm and sentenced to five years at St. Cloud prison. Earlier this month, his brother Maurice was killed when a man he argued with intentionally hit him with a car.

Always a strong position, the victim is a bad guy, as shown by something he did later.  The defense is particularly compelling in this case, since his 5 year prison sentence suggests that the two cops will be the most gentle visitors to his backside for a long time to come.



And on the positive side:

'Please keep in mind that officer safety at a scene is a very important consideration,' he said. 'We all recall the horrible shootout in August of 2002, where officer Melissa Schmidt was killed in the line of duty by a woman concealing a gun.'

While the nexus between the search of Meek's anus and the horrible shootout may be somewhat illusive, who would dispute that our police should be safe from . . . what?  Methane?  Unpleasant odors?  It seems that they were pretty open to such harm as soon as they pulled down Meeks pants.  No mention, incidentally, of whether his pants were saggy, though the fact that Meeks wasn't shot suggests they fit properly.



And finally:

Dolan said his department takes all allegations of misconduct seriously and referred to publicly available policies online that address strip searches.

This is certainly more comforting than if they didn't take 'allegations' seriously.  Or if there wasn't a video.



H/T Jdog

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It had to happen.

It had to happen.: "This wave has been moving toward shore for a long time. For those of us who move in and out of foreclosure cases, as title counsel, as counsel for intervenors, as counsel for homeowners and interested parties, this swell was visible in the distance. I have always wondered how these firms can handle such a high volume of foreclosure cases with so few lawyers. As hard as the lawyers work, far too much appears delegated and automated.

Quality is the paramount issue. A lawyer's signature is, or at least should be, the certification of an item's quality, on top of the usual presumptions about truth and veracity imposed by rule. A pleading, letter, affidavit or any other item bearing counsel's signature must be correct, appropriate, and worthy of framing. Frankly, I paid far to much money to earn the privilege of signing my name to court documents to entrust it to others who may affix it to a deficient writing.

"

Argument preview: Excludable confessions and effective counsel

Argument preview: Excludable confessions and effective counsel: "

The Sixth Amendment secures a criminal defendant’s right to effective assistance of counsel.  Under Strickland v. Washington (1984), that right is violated when a lawyer’s performance falls below an objective standard of reasonableness, resulting in prejudice to the defendant.  Counsel’s representation is prejudicial when there is a reasonable probability that, but for the lawyer’s deficiencies, the proceeding would have ended differently.  Some defendants accept a plea bargain and then argue that their counsel was ineffective; in those cases, Hill v. Lockhart (1985) instructs a court to ask whether there is a reasonable probability that the defendant would have gone to trial had his counsel been constitutionally adequate.  When the Court hears argument tomorrow in Premo v. Moore (09-658), it will attempt to clarify how Strickland and Hill apply to plea deals that are made after counsel fails to suppress an unconstitutionally obtained confession.

Background

After confessing his role in a kidnapping that ended in the shooting death of the victim, respondent Randy Moore pleaded no contest to felony murder.  Although he confessed only after the police promised him leniency and denied him counsel during an interrogation that was arguably custodial, Moore’s lawyer did not move to suppress the videotaped statement.  Moore then sought to have the judgment vacated.  During the post-trial proceedings, Moore’s trial lawyer explained in an affidavit that he had not attempted to suppress the confession because he believed that it was given lawfully; moreover, he contended, a motion to suppress would have been pointless in light of Moore’s additional confessions to his girlfriend and half-brother.

After his efforts to obtain state post-conviction relief were unsuccessful, Moore filed a federal habeas corpus petition.  The district court concluded that his confession was unconstitutionally obtained but denied habeas relief on the ground that Moore’s trial counsel had not necessarily been unreasonable in failing to suppress it.  Because the state did not contest the district court’s conclusion that Moore’s confession was obtained unconstitutionally, the only question on appeal was whether his counsel’s performance had been unreasonable and prejudicial.  A three-judge panel of the Ninth Circuit reversed, holding that because Moore’s confession was at least as prejudicial as the one at issue in Arizona v. Fulminante (1991) – where the Court held that the existence of a second confession did not mean that counsel’s failure to suppress the first was harmless error – the state court’s contrary finding was an unreasonable application of clearly established federal law.  The Ninth Circuit denied rehearing en banc over five dissenting votes, and the Supreme Court granted certiorari.

The state’s arguments

The state argues that Moore’s counsel was not unconstitutionally ineffective because he could reasonably have decided that a motion to suppress one of Moore’s three confessions would be pointless.  The state attacks the Ninth Circuit’s reliance on Fulminante, from which that court deduced the principle that “the admission of an additional confession ordinarily reinforces and corroborates the others and is therefore prejudicial.” Fulminante concerned direct review, the state counters, and does not apply to collateral attacks in which no trial has occurred.  On direct review, the state has the burden of proving the harmlessness of an evidentiary error; by contrast, on collateral review, the petitioner must prove that his attorney’s conduct was prejudicial.  Moreover, Fulminante’s harmless-error inquiry requires the assessment of a confession in the context of the other evidence presented at trial; when it is a plea bargain being challenged, no such context exists.

And even if Fulminante does establish the proper standard for evaluating Moore’s habeas petition, the state continues, that standard would be novel as applied to collateral attacks on plea bargains.  Thus, contrary to the requirements of the Antiterrorism and Effective Death Penalty Act, it would not have been clearly established federal law when the Oregon courts evaluated Moore’s post-trial claims, and the Ninth Circuit therefore erred when it granted Moore habeas relief.

Finally, the state argues that its courts reasonably relied on the trial attorney’s affidavit in finding that a motion to suppress Moore’s confession to the police would have served no practical purpose, and that nothing in the record required a state court to find a reasonable probability that Moore would have gone to trial but for his counsel’s conduct.  Here too, the state contends, the Ninth Circuit’s decision contravened AEDPA because the panel failed to show the necessary deference to the state courts’ factual findings.

Moore’s arguments

Moore argues that, although Strickland, Hill, and a third case – Kimmelman v. Morrison (1986), which requires a reviewing court to assess the likelihood that a motion to suppress would have succeeded had it been made – provide the clearly established federal law governing his habeas petition, the Ninth Circuit nonetheless correctly held that such law had been misapplied by the Oregon courts.  The Ninth Circuit properly looked to Fulminante in evaluating both the reasonableness of his lawyer’s performance and the prejudice that arose from any failing, Moore argues, because that case describes the harm that flows from the failure to suppress one confession when others exist.

Moore next defends the Ninth Circuit’s de novo review of the facts.  Because the state court erroneously believed that a motion to suppress would have been meritless, Moore asserts, it never considered whether counsel’s failure to file such a motion prejudiced him.  In the absence of any state court holding on the point, there was nothing to which a federal court could defer.  Moreover, the standard for habeas review is whether the state court determination was unreasonable, rather than (as the state suggests) whether a contrary determination was required.  Finally, Moore argues that the Ninth Circuit was correct to find that he was prejudiced by his counsel’s conduct, and that so holding would neither require states to generate a voluminous record when accepting pleas nor open a floodgate to new challenges.

"

On the ethics of fake friending

On the ethics of fake friending: "An ethics committee for the Bar of the New York City Bar has concluded, unsurprising, that it is unethical for a lawyer to pretend to be someone else to become your friend on Facebook in order to get at your secrets.

The opinion concludes:

'Rather than engage in 'trickery,' lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful 'friending' of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual’s social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line.'

"

CA4: DL checkpoint stop was valid

CA4: DL checkpoint stop was valid: "

Defendant was stopped at a DL checkpoint, and he did not have one and appeared really nervous. He consented to a search of his person producing cocaine, and that led to a “limited protective search” of his car, which would have been valid under the automobile exception. United States v. Nixon, 2010 U.S. App. LEXIS 20414 (4th Cir. October 1, 2010) (unpublished).*

The stop of defendant’s vehicle was valid because the police recognized the passenger and had a warrant for him. Defendant’s minor questioning while waiting for the paperwork to be verified led to an admission that the car was going to a drug deal, and that supported a search. United States v. Savath, 2010 U.S. App. LEXIS 20391 (9th Cir. October 1, 2010) (unpublished).*

The question of exigent circumstances for the police entry into defendant’s home was irrelevant because nothing of any consequence was found and nothing from that entry was used at trial. The fact is was a potentially dangerous situation was essentially moot and abstract. United States v. Escobedo, 2010 U.S. App. LEXIS 20432 (7th Cir. October 4, 2010) (unpublished).*

"

Grits for Breakfast: Brady violations by DPS fingerprint examiners? Is ...

Grits for Breakfast: Brady violations by DPS fingerprint examiners? Is ...: "There was an astonishing moment yesterday at a breakout session on fingerprint examination at the Texas Forensic Science Seminar, at which D..."

New law review articcle: "A Fourth Amendment for the Poor Alone ..."

New law review articcle: "A Fourth Amendment for the Poor Alone ...": "

A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home by Jordan C. Budd of the University of New Hampshire School of Law, to be published in the Indiana Law Journal, Vol. 85, No. 2, 2010. Abstract at the link.

"

Bank of America Extends Foreclosure Moratorium to All 50 States

Bank of America Extends Foreclosure Moratorium to All 50 States: "Updated: Bank of America is stopping foreclosures in all 50 states, making it the first bank to call a nationwide halt to foreclosures amid questions about flawed documents. The halt expands the bank’s previous moratorium on foreclosures in 23 states where courts have to participate in foreclosure proceedings, according the Washington Post. JPMorgan Chase and Ally Financial, previously known as GMAC, have also previously announced a stop to foreclosures in 23 states, Reuters says. A Bank of America statement says foreclosures will be stopped until the bank completes a review of foreclosure documents. Senate Majority Leader Harry Reid, D-Nev., praised…"

Being a landlord or tenant has pitfalls | Richmond Times-Dispatch

Being a landlord or tenant has pitfalls | Richmond Times-Dispatch: "Being a landlord or tenant has pitfalls | Richmond Times-Dispatch The first time landlord has to learn how to handle the business of renting real estate before the lease is signed. He needs to learn what has to be included in a lease before enters the relationship with the tenant, how to protect his asset, how to remedy the problems a tenant may create, and what he can and cannot do in this relationship.

"

New Post on Prosecutorial Misconduct

New Post on Prosecutorial Misconduct: "According to a new article by the National Law Journal highlighted at Sentencing Law and Policy. This article comes on the heels of the article in the USA Today also discussing the most serious issues associated with prosecutorial misconduct (blogged about here). Among the highlights of the report noted by Professor Bergman:

Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released Monday.

The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.

Among the 707 cases, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors....

The project found that judges often failed to report misconduct to the state bar despite having a legal obligation to do so. Sixty-seven prosecutors committed misconduct more than once and some as many as five times. The majority of those prosecutors were never publicly disciplined, the project said....

The report included recommendations for reform. It called for district attorneys to adopt internal policies that do not tolerate misconduct. It also called for the state bar to increase disciplinary transparency.

"

Being a landlord or tenant has pitfalls | Richmond Times-Dispatch

Being a landlord or tenant has pitfalls | Richmond Times-Dispatch The first time landlord has to learn how to handle the business of renting real estate before the lease is signed. He needs to learn what has to be included in a lease before enters the relationship with the tenant, how to protect his asset, how to remedy the problems a tenant may create, and what he can and cannot do in this relationship.

Big Lenders and Foreclosure Mistakes

GMAC Mortage halted foreclosures in 23 states last week when GMAC's manager stated that "he had signed off on legal documents for 10,000 foreclosure papers a month without following verification procedures..."

DUI BLOG: Breathalyzers: When Alcohol Is Not Alcohol

DUI BLOG: Breathalyzers: When Alcohol Is Not Alcohol

FourthAmendment.com - Post details: VA upholds GPS tracking of a suspected serial rapist's car involving real-time tracking

FourthAmendment.com - Post details: VA upholds GPS tracking of a suspected serial rapist's car involving real-time tracking

ACLU Sues Obama Administration Over Alleged Assassination Plot

ACLU Sues Obama Administration Over Alleged Assassination Plot: "The ACLU proved itself once again an equal-opportunity litigant on Monday when it filed suit against the Obama administration over an alleged policy of killing American citizens suspected of terrorism.

"

Va. institutions on list for sexual misconduct involving inmates | Richmond Times-Dispatch

Va. institutions on list for sexual misconduct involving inmates | Richmond Times-Dispatch

The Government Can Use GPS to Track Your Moves

The Government Can Use GPS to Track Your Moves The cops crawl under your car in the dark of night installing a gps on your car. It's ok. Just so you know, you have no reasonable expectation of privacy in your driveway. So, when the neighborhood thugs come around spying in your car while it's in the driveway, it's ok...no reasonable expectation of privacy.

Plan For Expungement

Expungements begin at your criminal trial. Whether you are on trial for a sex offense, drug possession, gun possession, or larceny, you need to look beyond your trial to how the outcome can affect the rest of your life.

An expungement is a legal process to seal your criminal history. While there is no way to seal a conviction record, arrests that do not result in a conviction may be expunged.

Careful planning in how you plead, present evidence, amend a charge can mean the difference between having a lengthy criminal history or having a clean record.

After your criminal matter is finished, you can then begin the process of sealing the arrest record from public view. Employers wouldn't find it. Admissions offices wouldn't find it. Volunteer organizations wouldn't find it.

If you've been arrested, and the arrest didn't lead to a conviction, you may be eligible for an expungement.

Knowledge of right to refuse search helps show consent

CA4: Knowledge of right to refuse search helps show consent: "

Consent was found voluntary because defendant was arrested by plain clothes officers who did not pull any weapons, he knew some of them, he was cooperative, and he was told of his right to refuse. United States v. Alexander, 2010 U.S. App. LEXIS 17293 (4th Cir. August 17, 2010 (unpublished).*

The officer did not unreasonably prolong the stop. Defendant consented to a search of his person producing $3,000 in cash and he was nervous. That was reasonable suspicion for calling in a drug dog. United States v. Whitney, 2010 U.S. App. LEXIS 17300 (4th Cir. August 17, 2010) (unpublished).*

Based on multiple intercepted telephone calls, the officers had probable cause to search defendant’s vehicle when he was found. United States v. Verdugo, 2010 U.S. App. LEXIS 17281 (1st Cir. August 19, 2010).*

The smell of marijuana, which the court credits, was not only reasonable suspicion, it is probable cause. United States v. Ortega, 2010 U.S. Dist. LEXIS 85154 (E.D. Pa. July 22, 2010).*

The officer here developed information from a CI which was corroborated and rose to the level of probable cause. The officer called in the defendant’s probation officer for the search. United States v. Lish, 2010 U.S. Dist. LEXIS 85138 (D. Idaho August 12, 2010).*

"

Va. ending face-to-face visits on death row | Richmond Times-Dispatch

Va. ending face-to-face visits on death row | Richmond Times-Dispatch

Fourth Amendment news: TSA "testing" "enhanced patdown"

Fourth Amendment news: TSA "testing" "enhanced patdown": "

TSA has started 'enhanced patdown' at the Las Vegas and Boston airports before trying it nationwide. It is reserved for those passengers who fail the metal detector, and it involves the front of the hand rather than the back.

The American Civil Liberties Union of Massachusetts is questioning whether the new technique is effective enough to justify what it calls a 'seemingly constant erosion of privacy.'

Ever been frisked like that? It is intrusive. It is what Brussels airport security uses on those on American flights. the back of the hand doesn't work for them? This will inevitably lead to more fishing expeditions into pockets.

"

We Can Never Be Too Safe

We Can Never Be Too Safe: "Jonathan Turley posts about a couple of bartenders who put on a great show, juggling bottles of booze and spitting streams of fire. Everybody loved it, and they are now saddled with three felony charges.

Two fire-breathing bartenders — Tegee Rogers, 33, and Justin Fedorchak, 39, — are the center of an interesting legal fight. The two men face up to 45 years in prison each for performing flaming bar tricks at Jimmy’s Old Town Tavern in Herndon, Virginia.

The bartenders are popular attractions as they juggle bottles of alcohol and spit streams of flames. The act has been going on for over a decade, but the police arrested the men and charged them with three felonies and some misdemeanors, including manufacturing an explosive device, setting a fire capable of spreading, and burning or destroying a meeting house.

What fascinating about this particular story is that sounds both extremely cool, and potentially extremely dangerous, at the same time.  This scenario may be the dividing line between safety and a fun, vibrant life.  So often, the conduct is just incredibly foolish or egocentric as to be unworthy of defense.  So often, the conduct just isn't sufficiently threatening to safety as to make it's regulation anything other than laughable. 



For quite a while, I've been paying close attention to the issue of the dividing line between living and safety as discussed by The Advice Goddess, Amy Alkon, and her muse, Walter Olson.  They've posted many stories of people doing the mundane stuff of a relatively normal life, only to have some official, whether governmentally authorized or by self-imposed title, put their offending conduct to rest.  A story that makes the point particularly well:

I happened to arrive at snack time, when one of the ladies was asking for another cookie. 'No,' the attendant told her patiently. 'It's not good for you! You can't HAVE another cookie.'

Whereupon, big surprise, the woman asked for another cookie. And the cycle began again.

That incident came to mind when I read this fantastic article about the focus on safety, and sometimes ONLY safety, in caring for the elderly. It seemed to me, at the assisted living place, that if a woman has lost a lot of her mind and yet KNOWS she wants a cookie -- give her a cookie! If it shortens her life a little, so be it!

I've got no clue why the second cookie was such a killer, but I'll accept the premise that there was a good reason to refuse the request.  So what?  Having lived long enough to span the days when there were no such thing as seat belts to the day when 64 airbags were the norm, I've watched a trend toward safety take hold.  And lose perspective.



Kids sometimes fall down and skin their knee.  I did.  Sometimes, they suffer tragedy and die.  I didn't.  There are risks out there that no child, nor elder, need endure.  The risk/reward ratio clearly favors safety.  But safety, taken to its logical extreme, would put everyone in a bubble, untouched and untouchable by anything that might conceivable cause harm. 



This just isn't a life worth living.  The arguments in favor of bubble-life are made by those who have suffered the harm, or their survivors.  Whether it's a child who choked on a hotdog or drowned in a pool, they have the moral justification to demand that no other person endure what they've gone through.  Any parent who has lost a child gains a moral prerogative, as no one should have to bury their child.



While acknowledging this right to argue their position, and feeling the same sympathy that any normal person would feel toward someone who has suffered so greatly, we need to maintain a level head about what can be reasonably accomplished in the name of safety without making life so devoid of flavor, activity and excitement as to be bubble-like. 



One of our blindest spots is cars, the cause of death for about 50,000 people a year and disability for many, many more.  We spent huge sums dealing with Homeland Security, knowing that the death toll at the WTC was about 3,000, and pay no attention to cars.  Teaching two teenagers to drive, I'm painfully aware of what it means to put a two thousand pound death machine into the hands of children.



Rationally, I would never teach my kids to drive.  I would never allow them in a car.  It's like begging for trouble.  But, of course, it would be impossible to live without cars, at least if we're to enjoy a normal life.  The risk is clear, but so is the reward.  Cars are much safer today than when I was first tossed into the back seat of a '57 Impala convertible with neither car seat nor seat belts, as well they should be. 



A bartender spitting flames doesn't quite carry the same level of necessity as transportation.  He makes for a very cook show, but it doesn't get you to work or school or the hospital.  If anything, it's more like cruising to the Stewart's Root Beer stand for a float.  Still, I can't imagine a life where my children would be unable to see anything cool, fun and exciting.  It's part of what makes life worth living. 



I don't want my kids to fall down and skin their knee, but I assume it's going to happen.  I used to break bones all the time as a kid, and don't have a straight finger in the bunch.  But I had a great time and wouldn't miss it for the world.  My kids aren't nearly as wild and inclined to take stupid risks as I was, for which I'm eternally thankful.   But I bite my tongue when they tell me what they're doing and where they're going, and tell them to have fun.



We need to come to the mutual realization that we cannot have a world where no one is hurt, where everyone is safe from the things that can harm them.  Risk, harm, is omnipresent in a real life, and the only way to eliminate it is to eliminate a life worth living. 



I propose that the 'bartender flambé' (Turley's phrase) be used as a rule of thumb, as the dividing line between acceptable risk and unacceptable risk.  As for prosecuting the bartenders, rather than just telling the bar that it can't put on the show anymore because it crosses the line of safety, that's just absurd.

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Simple Justice: We Can Never Be Too Safe

Simple Justice: We Can Never Be Too Safe

Have Released Felon In Custody. Job Done!

Darn it. Here's a parolee. He's already been to prison. Surely he's got some connection to the crime spree. OOOPS...guess not. That pretty much sums it up.
I guess the cops will have to start working on their investigation instead of taking the easy way out.

Denver officials clash over police discipline after brutal video released - The Denver Post

Denver officials clash over police discipline after brutal video released - The Denver Post

Ex-Inmate’s Dilemma - $2.2 Million or a Lawsuit - NYTimes.com

Ex-Inmate’s Dilemma - $2.2 Million or a Lawsuit - NYTimes.com

Wrong Number Connects Drug Seller With Police

I suppose when you market your marijuana, you want to make sure your weekly sales aren't going to the police department. Wrong Number Connects Drug Seller With Police

Diamonds may be forever, but love isn’t

Diamonds may be forever, but love isn’t: "

There’s etiquette, there’s ethics and then there’s the law.

When a couple’s engagement ends, does the woman have to return the ring to her former fiancé?

Virginia trial courts are split but the latest word from Richmond Circuit Court is no, then yes.

That is, Richmond Circuit Court Judge Melvin Hughes initially rejected the jilted lover’s demand for the ring, then changed his mind. Upon further reflection, Hughes said in Hicks v. Jordan that the plaintiff proved the ring was “a gift made in contemplation of marriage and as such, is conditional.

“Upon breach of the engagement to be married, the property may be recovered by the donor,” Hughes said on June 16.

In 2006, a Newport News Circuit Court said a man had no claim to a ring costing nearly $25,000. Judge Timothy Fisher reviewed circuit court decisions from Fairfax and Amherst Counties that allowed the claim. But he cast his lot with a 2005 Salem Circuit Court decision that rejected the claim.

The Richmond court based its decision for the man on a 1921 Missouri case cited with approval by the Supreme Court of Virginia in a 1941 case, Pretlow v. Pretlow.

By Deborah Elkins

"

If Big Brother is Watching, He Needs a Warrant, Court Says

If Big Brother is Watching, He Needs a Warrant, Court Says: "Big Brother may well be watching. But if he's planted a satellite tracking device in your car, he'd better have a warrant, according to a federal appeals panel in the District of Columbia.

"

Supreme Court of Virginia Appeals Granted

Supreme Court of Virginia Appeals Granted: "Appeals granted by the Supreme Court of Virginia. Appeals are removed from this list after decisions are issued by the court."

Virginia AG rules police may inquire about immigration status

Virginia AG rules police may inquire about immigration status: "[JURIST] Virginia Attorney General Kenneth Cuccinelli (R) [official website] on Friday issued an opinion [text, PDF] finding that state law enforcement officials have the authority to investigate the immigration status of those they stop or arrest. The opinion was issued following a request from Delegate Bob Marshall (R) [official website] asking whether Virginia officials have the same authority as that conferred to Arizona law enforcement officials under that state's recently enacted immigration law [SB 1070 materials; JURIST news archive]. Under Virginia law, an opinion of the attorney general is considered law unless overturned [WP report] by a judge in a..."

FOXNews.com - Virginia Attorney General Rules Police Can Check Immigration Status

FOXNews.com - Virginia Attorney General Rules Police Can Check Immigration Status

The Law Office of Susan E. Allen

Drug Possession
Theft Crimes including petty larceny and grand larceny
Traffic Matters

OH12: Officer approached car from which he saw furtive movements and then smelled marijuana

OH12: Officer approached car from which he saw furtive movements and then smelled marijuana: "

An officer saw defendant’s SUV parked behind a bar and saw furtive movements when the occupants saw the officer. He drove up on them shining his police car lights. He could smell marijuana smoke, and that was justification for a search of the car. State v. McMullen, 2010 Ohio 3369, 2010 Ohio App. LEXIS 2856 (12th Dist. July 19, 2010).* This is the reasonable suspicion, for which there is no articulable basis of a crime:

[*P2] Officer Scott Johnson of the Trenton Police Department was on patrol in the evening hours of March 27, 2009, when he pulled into the parking lot of Whitey's Bar. According to Johnson's testimony at the motion to suppress hearing, upon pulling into the parking lot, he noticed a parked SUV that was occupied by multiple people. When Johnson saw that some of the people in the vehicle were making furtive movements, he approached the SUV in his police cruiser and turned on his spotlight. Once Johnson shined his light into the vehicle, he noticed the front passenger 'ducking underneath the dashboard' and that his head came up and down.

[*P3] Johnson also noticed that a 'considerable' amount of smoke was coming from the vehicle and that the passengers continued to make furtive movements. At that point, Johnson exited his cruiser and approached the vehicle. As he walked closer, he saw some of the passengers bend over and put their hands down in the seat, and also noticed that the smoke coming from the vehicle smelled of 'raw burnt marijuana.' Johnson saw three people sitting in the back and two in the front of the vehicle, and continued to see smoke coming from the back corner.

So, if no furtive movements on seeing the police the stop was unjustified? This just is not reasonable suspicion.

"

Despite Public Right to Take Photos, Police Are Camera-Shy and Worry About Pix of Buildings

Despite Public Right to Take Photos, Police Are Camera-Shy and Worry About Pix of Buildings: "In theory, citizens have a constitutional right to take photographs in public places, under most circumstances. In practice, in a post-Sept. 11, 2001 world, doing so may well get you questioned by police if your subject is a public building or police themselves. And if you assert your rights, the situation could escalate, according to the Washington Post. While several jurisdictions say they plan to provide more training to security officers to help them determine what is and isn't appropriate, the problem continues. Among those who have recently complained about overly aggressive intervention is a retired oceanographer who says he…"

Just how "free to leave" are you?

Just how "free to leave" are you?: "

Defendant’s traffic ticket took 17-20 minutes. He was free to leave, and the officer asked for consent, which defendant first hesitated about and the officer clarified, and he consented. United States v. Mohammed, 2009 U.S. Dist. LEXIS 129055 (M.D. Fla. June 29, 2009).*

Defendant’s traffic ticket took 16 minutes. As he was walking back to his car, he was asked for consent, which he gave. United States v. Cruz-Guzman, 2009 U.S. Dist. LEXIS 129013 (M.D. Fla. May 21, 2009).*

One could say that the defendants here were just stupid for consenting, which might be only a little true. Instead, I believe all these type cases involve the officer exploiting every motorist’s legal need to cooperate during a traffic stop, which his hardly ever discussed in the cases. While the officer may say the defendant is free to go, the defendant doesn’t necessarily know it even if the officer tells him he can go but then re-engages him in conversation. At that point, the defendant has to believe that his permission to leave has been revoked. Just how truly “free to leave” are you when the officer keeps talking? “He said I could go but now obviously I can't because he's asking questions.” How “free” is that?

This is truly exploitation of a fiction in both fact and the law, and it is sorely disappointing to read this cases with the officer exploiting the motorist to keep talking to get consent or reasonable suspicion. You'd have to read the case law to know you were free to leave, and who does that except us lawyers?

"

"Drivers on Prescription Drugs Are Hard to Convict"

"Drivers on Prescription Drugs Are Hard to Convict": "The story is in the New York Times: The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving. The behavioral effects of prescription medication vary widely,..."

Chesterfield County: Leaders Consider Raising Fees Some Drivers Pay in Accidents. - wtvr

Chesterfield County: Leaders Consider Raising Fees Some Drivers Pay in Accidents. - wtvr

Ex-Pa. judge pleads guilty in kids-for-cash scheme - NBC12 News, Weather Sports, Traffic, and Programming Guide for Richmond, VA |

Ex-Pa. judge pleads guilty in kids-for-cash scheme - NBC12 News, Weather Sports, Traffic, and Programming Guide for Richmond, VA |

'A Commandeering of the People' - WSJ.com

'A Commandeering of the People' - WSJ.com

Tattoos not testimonial, court says

Tattoos not testimonial, court says: "

“Body, unity, love, lust and soul.” If it sounds like a modern marketing campaign, it is. It represents the five-point star of the Bounty Hunter Bloods street gang.

Gang member Gary Toliver sports some of these values as body art. Police took pictures of his eight tattoos after his arrest in 2008, and the photos were introduced at his Norfolk federal trial on racketeering and related charges.

Toliver, a/k/a Lil Gary, said photos of his tattoos violated his Fifth Amendment right against self-incrimination. In an unpublished opinion, the court said tattoos are a physical trait, like his voice or handwriting, and are not testimonial. Nor did an agent’s testimony interpreting the tattoos violate the Sixth Amendment Confrontation Clause, the court said.

The decision upholding Toliver’s convictions offers a chilling tutorial in gang life.

The panel traced the origins and present-day outlines of Norfolk’s BHB. Established in the early 1990s by an “Original Gangster” from New York, the gang allegedly controls Norfolk neighborhood “chapters” led by “generals.” Generals command “young gangsters” or “little homies.”

The most common way to join the BHB is “to shoot a 31.” The applicant stands in the middle of BHB members in a five-pointed star formation, and submits to a 31-second beating by current gang members. Members also can be “blessed” in and “women, called rubies, can be ‘sexed in,’ by having sexual intercourse with five members of the gang.”A gang leader estimated up to 400 members in the BHB at the time of trial, mostly teenagers, but some as young as nine.

At regular chapter meetings, members were encouraged to “represent their flag” and to engage in fundraising through home invasions, robberies and sales of narcotics. Little homies who refused to “put in work” might have to shoot a 31 again. The 31-second fight also is cited in a Portsmouth case decided the same day by the Virginia Court of Appeals. Little homies get “G Checked,” challenged by an older member on gang protocol.

The tattoos, hand signs, lingo and dress code all “serve to brand the gang, both within its membership and to rival gangs and the public,” the panel said.

By Deborah Elkins

"

Middle-Class Dilemma: Can’t Afford Lawyers, Can’t Qualify for Legal Aid

Middle-Class Dilemma: Can’t Afford Lawyers, Can’t Qualify for Legal Aid: "Lawyers are just too expensive for many people needing legal help, a law professor says. “You can hardly find a lawyer who charges less than $150 per hour, which is out of reach for most people,' University of Southern California law professor Gillian Hadfield tells the Wall Street Journal. At the same time, people who can’t afford lawyers make too much money to qualify for legal aid. Most aid groups serve those at or below the poverty line, and budget cuts are forcing the organizations to turn away more people, the story says. The newspaper cites a survey of nearly…"

York prosecutor exonerated by ethics panel

York prosecutor exonerated by ethics panel

Juvenile Convictions Aren’t Child’s Play

The consequences of "adjudications of juvenile delinquency" are severe. If a juvenile is adjudicated delinquent for a crime that would be a felony if committed by an adult it saddles that kid with the label “FELON” for the rest of his life. If a juvenile 14 years of age or older at the time of the offense is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult, all court records, except any social history, mental health records, shall be open to the public and shall be retained by the court. Va. Code § 16.1-305. In short, the juvenile felony adjudications will not be expunged...ever.
The bit of good news for a juvenile adjudicated delinquent of an adult felony is that the juvenile will not be deprived of his civil rights as it would for an adult convicted of a felony. Va. Code § 16.1-308. Be aware, however, the felony adjudication will bar the juvenile from purchasing a firearm later in the juvenile’s adult life.
The juvenile adjudicated delinquent of an adult felony will have to provide a DNA sample that will be maintained at the Central Criminal Records Exchange. Va. Code § 16.1-299.1.
The juvenile will further be required to submit fingerprints and photographs when arrested and maintained at the CCRE. Va. Code § 16.1-299. If the juvenile, of any age, is convicted of a felony or adjudicated delinquent of an offense that would be a felony if committed by an adult, copies of the fingerprints and a report of the disposition will be forwarded to the CCRE.
Fortunately, it’s not quite as dire if a juvenile is adjudicated delinquent of a crime that would be misdemeanor if charged as an adult. The records of a juvenile charged with an adult misdemeanor are not open to the public. Only a few, specific people have access to the records. Va. Code § 16.1-305. Be aware, however, that Va. Code § 16.1-299 requires that fingerprints and photographs be forwarded to the CCRE. While release of the information held by CCRE related to a juvenile charged with an adult misdemeanor is strictly limited, it does still exist in law enforcement records.
Yet one more bit of fortune exists when a juvenile is charged with a misdemeanor instead of a felony. Va. Code § 16.1-306 requires the clerk of the juvenile and domestic relations district court to destroy all files and records related to any proceeding concerning a juvenile when the juvenile reaches the age of 19 years and five years have passed since the date of the last hearing. There are a few exceptions to this, such as DUI related offenses. The records related to a juvenile adjudicated delinquent of an adult felony will not be expunged. The court is supposed to notify the juvenile of his rights related to the expungement of the juvenile record at the dispositional hearing. When the records are destroyed, the “violation of law shall be treated as if it never occurred.” All references must be deleted and the court, law-enforcement officers, agencies, and the person may reply to any inquiry that no record exists.

Never Agree to be Interviewed by the Police

Never Agree to be Interviewed by the Police: "

An law school professor and former criminal defense attorney along with a former police officer tells you why you should never agree to be interviewed by the police.

"

Restoration of Firearm Rights

Va. Code § 19.2-308.2 prohibits a person who has been convicted of a felony from possessing or transporting a firearm. Likewise, if you were adjudicated delinquent as a juvenile 14 years of age or older at the time of an offense of murder, kidnapping, robbery by the threat or presentation of firearms, or rape you cannot possess a firearm. In addition, any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, other than murder, kidnapping, robbery by the threat or presentation of firearms, or rape cannot possess a firearm.

You may, however, have your right to possess a firearm restored. The prohibition to possession a gun in Virginia under Va. Code 18.2-308.2 does not apply to a felon who has had his "political disabilities" removed by the Governor pursuant to Article V, Section 12 of the Virginia Constitution provided the executive order granting the pardon or restoring the person's civil rights contains no express conditions limiting the reinstatement of the person's right to ship, transport, possess or receive firearms. However, when you apply to the Governor's office for a restoration of civil rights, the rights that will be restored are limited to the right to register to vote, hold public office, serve on a jury, and serve as a notary public. The restoration of rights does not restore the right to possess a firearm.

To restore the right to possess a firearm, a felon must petition the appropriate circuit court pursuant to Va. Code §18.2-308.2. To regain state firearms privileges, a felon may apply to the Circuit Court of his residence for a permit to possess or carry a firearm. The court "in its discretion and for good cause shown" may grant the petition. While the Governor has the authority to restore state firearms privileges expressly by a pardon or though restoration of political rights, he does not customarily do so.

For purposes of determining whether or not a felon is eligible to possess a gun under federal law, the predicate felony conviction is determined under the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside, or for which a person has been pardoned, or has had civil rights fully restored is not a predicate felony conviction for purposes of lawfully possessing a firearm. Felonies, for purposes of understanding whether or not a felony conviction prohibits firearm possession under federal law, does not include certain business and white collar crimes.

Under 18 U.S.C. § 921(a)(20), a crime punishable by imprisonment for a term exceeding one year does not include any Federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.

Misdemeanor crimes of domestic violence present a unique issue. Because it is a misdemeanor, there is no denial of state civil rights nor is there a restriction on the possession of a firearm. It appears the only remedy that may available in cases of misdemeanor domestic violence convictions is to seek a pardon. Recently, however, the Fourth Circuit decided that the Virginia statute defining assault and battery would not necessarily be a misdemeanor crime of domestic violence under federal law. As a result of the decision in this new case, it may be, in certain cases, that a loss of one's right to possess a firearm cannot be denied by the federal government.

Under federal law, a person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws. The Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. A person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial.
There's a problem with this scheme, however. The Attorney General delegates the review of the restoration petitions to the Bureau of Alcohol, Tobacco and Firearms (BATF). Since 1992, Congress, in its annual appropriations, has explicitly barred BATF from expending funds to investigate or act on applications by individuals. Consequently, BATF has not been processing applications. The U. S.Supreme Court has held that BATF inaction on applications does not constitute a "denial" under the law thus an applicant cannot go on to the federal court to seek judicial review to regain their firearm privileges. For the time being, a federal felon's sole option is to seek, and hope for, a presidential pardon.

Pre-Written DUI Arrest Reports

Coming soon to a police department near you. Pre-written reports for a DUI arrest.

Restoration of Civil Rights

If you were convicted of a felony, restoring your civil rights is the first door to get through to obtain a pardon and to have your right to possess a firearm restored. The restoration of rights restores the rights to vote, to run for and hold public office, to serve on juries and to serve as a notary public. Restoration of rights does not include the right to possess or transport a firearm or to carry a concealed weapon.

Restoring your civil rights begins with the Governor’s office. The eligibility requirements for restoration of rights by the Governor of Virginia:

The applicant must be a resident of the Commonwealth of Virginia or have been convicted of a felony in a Virginia court, a U.S. District court or a military court.
The applicant’s sentence must be completely served.
The applicant cannot be under any supervised probation and parole for a minimum of two years for a non-violent offense or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.
The applicant must have paid all court costs, fines, penalties, and restitution.
The applicant cannot have any pending misdemeanor or felony charges.
The applicant cannot have had a driving while intoxicated charge in the five years preceding the application.
The applicant cannot have any misdemeanor convictions and/or pending criminal charges for two years preceding the application for non-violent felonies or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.

The Director of the Department of Corrections is required to provide to any person convicted of a felony notification of the loss of his civil rights and of the processes to apply for restoration of civil rights and of voting rights. The notice is required to be given at the time the person has completed service of his sentence, period of probation or parole, or suspension of sentence. Va. Code § 53.1-231.1.

The application for restoration of civil rights is submitted to The Secretary of the Commonwealth Office, which will conduct a criminal history and DMV record check. An applicant will receive notice of the Governor’s decision within 60 days from the time an application is considered complete. If the petition for restoration of rights is denied, you may reapply after a one-year period.

There’s another interesting avenue to get to a restoration of civil rights, and that’s using Va. Code § 53.1-231.2. Va. Code § 53.1-231.2 allows persons convicted of non-violent felonies, except certain drug-related offenses and election fraud, to petition a circuit court for approval of a restoration of voting rights. This petition to the circuit court is merely to restore voting rights, but can then be used as a stepping stone to the restoration of all civil rights lost upon conviction of a felony. In this statute, the General Assembly has established standards for identifying felons who may qualify for restoration of their eligibility to vote. The court's function is limited to making a determination whether a petitioner has presented competent evidence supporting the specified statutory criteria, and a court's approval or denial of a petition, and transmittal of its order to the Secretary of the Commonwealth completes this statutory process. The court's order does not constitute the rendering of an advisory opinion because the order adjudicates only the issue of the sufficiency of the evidence in support of the statutory criteria and does not state an opinion whether the Governor should restore the civil rights of a petitioner.

It is important to know that if a circuit court denies a petition filed under the statute, that denial does not affect a convicted felon's constitutional right to apply directly to the Governor for restoration of the petitioner’s civil rights. Filing a petition in the circuit court is not a requirement before applying to the Governor.

MD: Continuing stop without RS required suppression

MD: Continuing stop without RS required suppression: "

Defendant’s continued stop lacked any reasonable suspicion, and the search suppressed. Nervousness alone is not enough. King v. State, 2010 Md. App. LEXIS 111 (July 7, 2010)*:

Lacking here, however, is any reasonable articulable suspicion that the occupants of the car were engaged in any criminal activity. Thus, the seizure was not reasonable. After conducting illuminated visual sweeps of the vehicle by search light and flashlight, Officer Chindblom observed no indication of criminal activity. Conversations with the four occupants revealed nothing constituting articulable suspicion of criminal activity. Neither McBride’s nor King’s perspiration or nervous appearance, alone, was enough to suggest criminal wrongdoing. [citation omitted] The officer did not smell any odor of illicit drugs. He did not observe any drug paraphernalia or, prior to the seizures of the sedan’s occupants, any weapons. A license check did not return anything unusual. Continued questioning merely produced multiple assertions that the occupants were not engaged in illegal activity.

This police-citizen interaction morphed from a legal encounter that was properly concluded into a second “stop” that was not justified by reasonable articulable suspicion. The Fourth Amendment violation occurred prior to McBride’s exiting the vehicle and the discovery of the gun. The State does not argue that the later voluntary consent to a search of the car cured the prior violation. The suppression motion was improperly denied.

Applying Rochin’s shocking the conscience test, the arrest of the plaintiff wasn’t. Fourth Amendment reasonableness discussed but not applied on these facts. Smith v. Bortner, 2010 Md. App. LEXIS 112 (July 7, 2010).*

"

Sealing a Criminal History

Virginia Code § 19.2-392.2 provides the skeleton of what it takes to be eligible for an expungement. The final disposition of the case must be acquittal, nolle prosequi, or “the charge [was] otherwise dismissed.” "Otherwise dismissed” is the disposition that typically is in the gray area where you may, or may not, be eligible for an expungement.

“Otherwise dismissed” means that your charge was dismissed by the court because you were truly innocent. If a defendant pleads guilty to the charge or if the court found evidence sufficient to find the defendant guilty, but the court deferred its judgment so that the defendant could, perhaps, pay restitution or complete substance abuse counseling, you would likely not be eligible for expungement. Dismissal of a case following a plea of no contest would similarly render a defendant ineligible for expungement.

Assuming you are eligible for the expungement, a petition is filed with the circuit court. After you complete the remaining requirements, there will be a hearing where you may have to show that you deserve to have your record sealed. You may have to personally testify or call witnesses to testify on your behalf. For example, you may have to tell the court how the charges on your criminal history negatively affect your ability to find employment. It may also be that you have been denied a a security clearance necessary to your job. Perhaps you may want to have your employer testify that your criminal history hinders your ability to execute your job.

A court may then order your criminal history expunged and require that law enforcement no longer disseminate the information that was expunged.

Other New Laws

Restricted driving privilege for out-of-state drivers. Provides that when the driver of any motor vehicle not licensed to drive in Virginia, but who has a valid driver's license from another jurisdiction, is convicted of any violation for which license suspension and issuance of a restricted license is authorized, the court may issue a restricted driving privilege in Virginia upon the same conditions as if the person held a valid Virginia license.

Appeal bonds; unlawful detainer; indigents. Adds unlawful detainer cases to the list of actions for which an indigent must post an appeal bond.

Adult students under the jurisdiction of the juvenile and domestic relations district court; notification to schools. Clarifies that notification is to be given to the superintendents of school divisions when students who are 18 years of age or older are charged with certain crimes and are subject to the jurisdiction of the juvenile and domestic relations district court. The bill makes a similar change for providing notification when such students are committed to a Department of Juvenile Justice facility.

Appeal of bail decision by attorney for the Commonwealth. Provides that if a judicial officer (including a magistrate) grants bail to an accused that is deemed inadequate or unreasonable by the attorney for the Commonwealth, the attorney for the Commonwealth may appeal to the court in which the case is pending when bail was granted by a magistrate or, when granted by a court, to the next higher court. Current law limits such appeals to appeals of a court decision only, and only upon objection in court by the attorney for the Commonwealth.

Foster care; plan to reduce. Requires the Governor and the General Assembly to develop and implement a plan to reduce the number of children in foster care by 25 percent within 10 years.

Impoundment of vehicle for driving while license suspended. Includes a violation of 18.2-272 (Class 1 misdemeanor to drive on a suspended license when suspended for driving for DUI or a DUI-related crime) in the section of the code ( 46.2-301) that provides that a motor vehicle impounded or immobilized by the police following an arrest for driving on a suspended license, when suspended for DUI or a DUI-related crime, may be impounded or immobilized for an additional 90 days by the court upon conviction of that offense.

Consecutive license suspensions for DUI. Provides that any suspension of driving privilege for driving while intoxicated shall run consecutively with any other court-ordered period of suspension. Currently, such suspensions for DUI run from the date of the court order, except in the case of suspensions ordered for failure to submit to a blood or breath test, which run consecutively with the DUI suspension.

Highway speed limits. Increases the general highway speed limit on highways where it is presently 65 mph to 70 mph.

Punishment of a juvenile for possession, etc., of alcohol. Provides that a juvenile charged with possession, consumption, etc., of alcohol may be found delinquent of such a charge and punished, or have his case deferred and upon completion of the terms and conditions of his probation, have his case dismissed by the juvenile and domestic relations district court. Current law provides that the case shall be deferred and shall be dismissed upon completion of terms and conditions.

Courts not of record; delinquent children; loss of driving privileges for alcohol, firearm, and drug offenses; truancy. Eliminates the authority of the court to give a restricted driver's permit, for travel to and from school, to a child who has lost his driving privilege for an alcohol, firearm, or drug offense, or truancy.

Prohibition on wearing a mask; public emergency exception. Adds to the existing exemptions in the section making it a Class 6 felony for a person over the age of 16 to wear a mask in public or on private property without the owner's written consent an exception when the Governor has declared a disaster or state of emergency in response to a public health emergency.

Concealed handgun permit applications; right to ore tenus hearing. Clarifies that a person who is applying for a concealed handgun permit for the first time has the same right to an ore tenus hearing if the permit is denied as a person who has previously held a concealed handgun permit.

Human infant; independent and separate existence. Provides that for the purposes of homicide and child abuse, a human infant who has been born alive and is fully brought forth from the mother has achieved an independent and separate existence, regardless of whether the umbilical cord has been cut or the placenta detached.

Entrustment agreements. Clarifies requirements for a valid entrustment agreement terminating parental rights to a child and authorizing a local board of social services or licensed child-placing agency to consent to the adoption of a child, and clarifies the requirement for counseling of birth parents, to include the provision of oral and written explanation of the adoption process, legal effects of adoption, and alternatives to adoption.

New Stuff for 2010

This is by no means all encompassing for our General Assembly were busy when they all converged on Richmond in January. These are a few of the new laws that you can prepare for in 2010.

Now, with the new Va. Code 19.2-130.1, should a judge issue a capias and order an accused held without bond, a magistrate cannot give that accused a bond when he is arrested.

Va. Code 19.2-386.16(B) will be changed so that if you abduct someone or pander a juvenile prostitute you lose your car. Thank goodness because this will really have a big affect on those pedophiles.

So, if you're a homeless guy living under the Manchester Bridge, for example, and you are required to register as a sex offender, you will now have to provide to big brother the location of your washing machine box. This is the new Va. Code 9.1-903(J).

My personal favorite is the new Va. Code 18.2-308. Thank goodness you will be able to take your concealed weapon into the bar with you, but if you have your hidden gun that no one knows about and drink, you will have committed a class 2 misdemeanor.
Another segment of Va. Code 18.2-308, which is the amendment that makes it my favorite, is that a person may now carry a concealed firearm in a car if it is locked in a compartment or a container.

With the exception of cops, Va. Code 46.2-857 now defines reckless driving as two motorcycles to ride side by side in one lane.

Check your buddy's license because you will have committed a class 1 misdemeanor if you allow your unlicensed buddy to drive your car with Va. Code 46.2-301.1.

This gets the FABULOUS award. Va. Code 19.2-73(B) will now allow a cop with probable cause that a driver has driven under the influence within three hours can legally arrest the driver even if he did not see the driving.

Super Sensory Speed Perception Leads to Conviction

Usually, the government has to show that the device used to determine a driver's speed is properly calibrated before the results of the speed detection device may be entered. In Ohio, however, state troopers are trained to develop super senses to determine speed of vehicles by merely looking at the vehicle...and this can lead to a conviction.
So here's my question...if the the officer testified that, based on his training and experience, he had estimated that the suspect's vehicle was
traveling 70 miles per hour. The radar results that were not admitted say the vehicle is traveling at 82 miles per hour. The ticket is for driving 79 miles per hour in a 60 mph zone. If the radar results were tossed, and the court finds that the officer is somehow equipped with super sensory speed perception, why isn't the ticket for 70 in a 60 zone?

You Can't Hide From Child Support

There's one or two truths in this world. One is that you will eventually die. The other is that you will never, ever get out of paying your child support. Not paying your child support can lead to jail, loss of your driver's license, and/or maybe loss of your professional license. It will continue to accrue while you are in jail and you will have interest to pay when you do not pay your support timely. In some cases, the only way to get yourself out of jail is to pay a purge bond, which may be the amount of child support you owe.

Here Cocaine, There Cocaine, Everywhere Cocaine...

Beware all ye who carry cash. More sensitive testing could very well find us all afoul of the law.

Where's the End of Governmental Power?

The federal government used Gitmo to shield itself from claims of detaining people without cause. This notion got shot down by the Supreme Court when the federal government was told it cannot detain people without allowing them to challenge their detention. Now, we have a new administration that continues the abuses.

Bum Equipment Means Bum Convictions

Washington DC has a problem with its breath machines. For those who are unfamiliar with what breath machines do, when you are suspected of driving under the influence of alcohol, your breath may be tested by a breath test machine that allegedly determines the level of alcohol in your breath. Through some further machine functions, the level of alcohol in your breath estimates the level of alcohol in your blood. When the machine is not calibrated correctly, the readings are off and people get convicted based on the wrongly calibrated machine reading. This is what happened in Washington DC.

What Do You Do?

You have the right to remain silent, to consult with an attorney, and to be free from unreasonable searches and seizures by law enforcement. These are you constitutional rights that you have every right to assert when you have an encounter with law enforcement.

First and foremost, remain polite and calm. Provide your identification, car registration, and proof of insurance. Politely refuse to answer further questions. Perhaps most importantly, do not consent to any search of your person, your property, your residence or your car. Do not answer any questions about whether or not you own any property. Remember, if you are not under arrest, you do have the right to leave.

State clearly, calmly, and politely that you:

Refuse to waive your right to remain silent.
Refuse to waive your right to an attorney.
Refuse to waive your right to be free from unreasonable searches and seizures.

Virginia's Assault and Battery Statute Doesn't Fit Under U.S. Gun Law

The issue to be decided in this case is whether the "use . . .of physical force," as that term is used in § 921(a)(33)(A)(ii), is an element of the criminal offense of assault and battery under Virginia law. "Physical force" is not defined in § 921 or any other relevant federal statute.
"The phrase ‘physical force’ means violent force that is, force capable of causing physical pain or injury to another person." Johnson, 130 S. Ct. at 1271. In doing so, it is clear that "physical force," so defined, is not an element of assault and battery under the well-established law of Virginia. See cases cited supra at 6-8. Therefore, White’s conviction under VA CODE ANN. § 18.2-57.2 is not, on its face, a "misdemeanor crime of domestic violence" under § 922(g)(9) because the Virginia statute is not an "offense that . . . has, as an element, the use or attempted use of physical force."

Racism and Jury Selection

"[T]he practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked."

So...How Do You Defend A Guilty Person?

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. United States vs. Wade, 388 U.S. 218 (1967).

Roadblocks and Checkpoints: So Much For Free Passage.

A person's reasonable expectation of privacy is not subject to arbitrary invasion solely at the unfettered discretion of the police. How many people know what this means? How many people know that when you are stopped at a roadblock or checkpoint, the police teeter dangerously on this edge?

The Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. In Wilson v. Commonwealth, 29 Va. App. 63 (1999), the Court of Appeals agreed that stopping a car and detaining the driver at a roadblock or a checkpoint is a seizure within the meaning of the Fourth Amendment.

To determine whether or not a checkpoint is constitutionally valid, the court applied the balancing test established in Brown. The Brown test involves the weighing three criteria: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with the individual liberty. The court stated the Commonwealth must present some evidence establishing the method employed will be an effective tool for addressing the public concern involved.

In Lowe v. Commonwealth, 230 Va. 346, 337 S.E. 2d 273 (1985), an arrest was made at a checkpoint conducted pursuant to a checkpoint plan. Analyzing the plan on the criteria set forth in Brown, the Supreme Court held: "Balancing the state’s strong interest in protecting the public from the grave risk presented by drunk drivers, against the minimal inconvenience caused motorists approaching the roadblock, we hold that the action of police in this case was not an impermissible infringement upon defendant’s reasonable expectation of privacy."

In Simmons v. Commonwealth, 238 Va. 200, 380 S.E. 2d 656 (1989), the Virginia Supreme Court considered a license and registration checkpoint established and conducted by a couple of troopers on their own initiative. The troopers stopped and inspected every vehicle passing through the checkpoint. This checkpoint was deemed unconstitutional. The Court demanded that that checkpoints, if they are to be undertaken, must be done pursuant to an explicit plan or practice which uses neutral criteria and limits the discretion of officers conducting the roadblock.

In Wilson, the court held where no evidence that a security checkpoint at the entrance to an apartment complex addressed concern about drug dealing or even that there existed empirical evidence that there was such a problem the roadblock stop at the defendant’s vehicle was held to be unconstitutional.