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.